Freedom of Expression, the Media and Journalists: Case

Transcription

T hemes
An electronic publication series
from the
European Audiovisual Observatory
This volume was prepared
with the collaboration of
Tarlach McGonagle (ed.)
and Dirk Voorhoof
Freedom of
Expression,
the Media and
Journalists:
Case-law of the
European Court
of Human Rights
IRIS Themes, Vol. III
Strasbourg 2013
Freedom of Expression, the Media and Journalists: Case-law of the European
Court of Human Rights, IRIS Themes, Vol. III
An electronic publication series from the European Audiovisual Observatory
Director of the Publication:
Susanne Nikoltchev, Executive Director of the European Audiovisual Observatory
E-mail: susanne.nikoltchev@coe.int
Editors and Coordinators:
Tarlach McGonagle, IViR (e-book); Francisco Javier Cabrera Blázquez (IRIS articles)
E-mail: T.McGonagle@uva.nl; francisco.cabrera@coe.int
Contributions:
Introduction and all contributions by Dirk Voorhoof (Ghent University and Copenhagen University), apart from six
contributions by Ad van Loon and one by Charlotte Vier
Editorial Assistant:
Michelle Ganter
E-mail: michelle.ganter@coe.int
Research and Editorial Assistance:
Rosanne Deen (research and key-words) and Nanette Schumacher (research and citations), former research
interns at IViR
Cover Layout:
Pointillés, Hoenheim (France)
Publisher:
76 Allée de la Robertsau
F-67000 Strasbourg
Tel.: +33 (0)3 90 21 60 00
Fax: +33 (0)3 90 21 60 19
E-mail: obs@obs.coe.int
www.obs.coe.int
Contributing Partner Institution :
Institute for Information Law (IViR)
Kloveniersburgwal 48
NL-1012 CX Amsterdam
Tel.: +31 (0) 20 525 34 06
Fax: +31 (0) 20 525 30 33
E-mail: website@ivir.nl
www.ivir.nl
Please cite this publication as:
Freedom of Expression, the Media and Journalists: Case-law of the European Court of Human Rights,
Tarlach McGonagle & Francisco Javier Cabrera Blázquez (Eds), European Audiovisual Observatory, Strasbourg
2013
© European Audiovisual Observatory, 2013
Opinions expressed in this publication are personal and do not necessarily represent the views of the Observatory,
its members or the Council of Europe.
IRIS THEMES, VOLUME III
Freedom of Expression, the Media and Journalists:
Case-law of the European Court of Human Rights
It is my pleasure to introduce the third e-book in the European Audiovisual Observatory’s IRIS
Themes series, prepared in collaboration with our partner organisation, the Institute for
Information Law (IViR) of the University of Amsterdam.
This e-book provides valuable insights into the European Court of Human Rights’ case-law on
freedom of expression and media and journalistic freedoms. It summarises over 200 judgments
or decisions by the Court and provides hyperlinks to the full text of each of the summarised
judgments or decisions (via HUDOC, the Court’s online case-law database).
This e-book promises to become a digital vade mecum on Article 10 of the European Convention
on Human Rights for lawyers, judges, law- and policy-makers, civil society actors, journalists
and other media actors, academics, students, and indeed everyone with an interest in its subject
matter. It can be read in various ways: for initial orientation in the steadily growing Article 10
case-law; for refreshing one’s knowledge of that case-law; for quick reference and checking, as
well as for substantive research.
The summaries included in the e-book have been reported in IRIS – Legal Observations of the
European Audiovisual Observatory between 1994 and 2013 and can be retrieved from our legal
database, IRIS Merlin. The summaries have not been re-edited for present purposes, although
hyperlinks to other judgments or reference texts have been introduced, as relevant; subsequent
developments (eg. referrals of Chamber judgments to the Grand Chamber) have been indicated,
again as relevant, and the citational style has been standardised to conform with the Court’s
official reporting guidelines.
The structure of the e-book is as follows:
1. Table of cases: an overview of all the cases summarised, including bibliographic data,
keywords, hyperlinks to the individual summaries and hyperlinks to the full texts of the
judgments or decisions.
2. Introduction by Dirk Voorhoof to trends and developments in the European Court of
Human Rights’ case-law on Article 10 of the European Convention on Human Rights in
the period 1994-2013.
3. Compilation of case-law summaries.
4. Appendices:
I: Cases reported in IRIS, but not included in the main selection (i.e., cases that were
struck off the list/in which friendly settlements were reached).
II: Overview of cases in alphabetical order.
1
III: Overview of cases by country.
IV: The European Convention on Human Rights – full text (as amended by protocols).
The idea of this e-book was conceived by Tarlach McGonagle (IViR), who also designed and
formatted it. I would like to thank him for his initiative and commitment. I am also very grateful
to the authors of the articles that comprise this e-book, in particular, Dirk Voorhoof (Universities
of Ghent and Copenhagen), who has been a steadfast IRIS correspondent since the very early
days of the publication. This e-book demonstrates the vast extent of his coverage of Article 10
case-law in IRIS over the years. Now that all of the individual summaries have been brought
together for the first time in one user-friendly, navigable document, their collective value can be
appreciated even better than before. Please see the technical tips on p. 3 in order to make optimal
use of the navigational tools in this e-book.
Thanks are also due to Rosanne Deen and Nanette Schumacher, former research interns at IViR,
for their research assistance and for providing keywords and for standardising citations,
respectively.
I would also like to remind readers of the focuses of the first two volumes in the IRIS Themes
series: standard-setting on freedom of expression and the media by the Council of Europe’s (I)
Committee of Ministers and (II) Parliamentary Assembly. Further volumes in this series are
already being prepared, but for now, enjoy the present one!
Strasbourg, November 2013
Susanne Nikoltchev
2
EUROPEAN COURT OF HUMAN RIGHTS
CASE-LAW ON ARTICLE 10, ECHR
(arranged in chronological order)
Please note:
-
Links in the first column lead directly to articles summarising the judgments or decisions in question.
To navigate back to the page you were on before clicking on a link, either use the “backward” button in your toolbar (if you
have one), or else click simultaneously on <Alt> + [arrow pointing left on the right-hand-side of your keyboard].
Click on the link at the bottom of each summary to access the full text of the judgment or decision via the European Court of
Human Rights’ HUDOC database.
Blue hyperlinks are to texts within this e-book; red hyperlinks are to external sources.
In the ‘Outcome’ column: V = Violation; NV = Non-Violation; I = Inadmissible. > GC indicates that the case was
subsequently referred to the Grand Chamber of the Court in accordance with Article 43, ECHR. Whenever mentioned,
numbers refer to ECHR articles other than Article 10.
Case Summaries
Appn. No. Date
1
Otto-Preminger-Institut v. 13470/87
Austria
2
Jersild v. Denmark
3
Vereiniging
Weekblad 16616/90
Bluf! v. the Netherlands
Vereinigung
15153/89
Demokratischer Soldaten
Österreichs & Gubi v.
Austria
4
15890/89
Outcome
20/09/ NV
1994
23/09/ V
1994
09/02/ V
1995
19/12/ V
1994
3
Keywords
HUDOC Page
Cinema, blasphemous film, religion,
artistic expression, margin of
appreciation, art house cinema
News reporting, interviews, anti-racism,
public watchdog, public function of press
National security, sensitive information,
State secrets, impart information
Political expression, critical reporting,
criticism, rights of others, reputation
Full text
29
Full text
30
Full text
31
Full text
32
5
Prager & Oberschlick v. 15974/90
Austria
26/04/ NV
1995
6
Tolstoy Miloslavsky v. the 18139/91
United Kingdom
Goodwin v. the United 17488/90
Kingdom
13/07/ V
1995
27/03/ V
1996
8
Wingrove v. the United 17419/90
Kingdom
25/11/ NV
1996
9
De Haes & Gijsels v. 19983/92
Belgium
24/02/ V
1997
10
Oberschlick (No. 2) v. 20834/92
Austria
01/07/ V
1997
11
Worm v. Austria
22714/93
29/08/ NV
1997
12
Radio ABC v. Austria
19736/92
13
Zana v. Turkey
18954/91
14
Grigoriades v. Greece
24348/94
15
Guerra v. Italy
14967/89
20/10/
1997
25/11/
1997
25/11/
1997
19/02/
1998
7
V
NV
V
NV10
; V8
4
Critical reporting , offensive information,
defamation, criticism, rights of others,
reputation
Defamation, libel, crime reporting,
disproportionate damages
Protection of sources, public interest,
responsible journalism, chilling effect,
whistle-blowing
Blasphemous film, artistic expression,
rights of others, general verification
system for videos, political speech, public
interest, margin of appreciation, morals
or religion
Defamation, criticism, duties and
responsibilities, mode of expression,
exaggeration, provocation, authority and
impartiality of the judiciary, protection of
journalistic sources, alternative evidence
Political expression, defamation, insult,
offensive information, limits of
acceptable criticism
Authority and impartiality of the
judiciary, journalism, prejudice, crime
reporting , fair trial
Private broadcasting, monopoly position
of the media, positive obligations
Political expression, incitement to
violence, terrorism
Military discipline, limits of acceptable
criticism, insult
Right to receive information, positive
obligations, effective protection, privacy
Full text
33
Full text
34
Full text
35
Full text
37
Full text
39
Full text
40
Full text
41
Full text
43
Full text
44
Full text
44
Full text
44
16
17
Bowman v. the United 24839/94
Kingdom
Schöpfer v. Switzerland
25405/94
19/02/ V
1998
20/05/ NV
1998
18
Incal v. Turkey
09/06/ V
1998
19
Ahmed & others v. the 22954/93
United Kingdom
Hertel v. Switzerland
25181/94
02/09/ NV
1998
25/08/ V
1998
21
Lehideux
France
v. 24662/94
23/09/ V
1998
22
Steel & others v. the 24838/94
United Kingdom
23/09/ V
1998
23
Fressoz & Roire v. France
29183/95
21/01/ V
1999
24
Janowski v. Poland
25716/94
25
Bladet Tromso & Stensaas 21980/93
v. Norway
21/01/ NV
1999
20/05/ V
1999
26
Rekvényi v. Hungary
20/05/ NV
20
&
Isorni
25390/94
5
Political expression, monopoly position
of the media, critical reporting
Limits of acceptable criticism, receive
information, critical reporting , public
interest
Political expression, separatist
propaganda, limits of acceptable
criticism, public interest, hate speech
Impart information, political expression,
margin of appreciation
Research paper, rights of others,
necessity, commercial speech, academic
freedom
Advertisement, reputation, rights of
others, abuse of rights, historical
research, second world war
Necessity, public order, rule of law,
authority of the judiciary, breach of
peace, preventing disorder, rights of
others
Confidential information, public interest,
well-known information, privacy,
journalistic ethics, tax reports, journalists
committing offence and public interest
Full text
45
Full text
46
Full text
47
Full text
49
Full text
50
Full text
50
Full text
51
Full text
53
Journalism, insult, necessity, offensive
and abusive verbal attacks
Secret information, presumption of
innocence, critical reporting, defamation,
honour and reputation, good faith, public
watchdog
Politically neutral police force, national
Full text
54
Full text
55
Full text
56
27
Arslan v. Turkey
23462/94
28
Polat v. Turkey
23500/94
29
Başkaya & Okçuoğlu v. 23536/94
Turkey
and
24408/94
Karataş v. Turkey
23168/94
30
31
Erdoğdu
Turkey
and
İnce
32
Ceylan v. Turkey
33
Okçuoğlu v. Turkey
24246/94
34
Gerger v. Turkey
24919/94
35
Sürek &
Turkey
v. 25067/94
and
25068/94
23556/94
Özdemir
36
v. 23927/94
and
24277/94
Sürek v. Turkey (No. 1)
26682/95
37
24122/94
38
24735/94
1999
08/07/ V
1999
security, prevention of disorder
Offensive information, political
expression, (separatist) propaganda,
limits of acceptable criticism, right to
receive information, duties and
responsibilities, hate speech or promotion
of violence, pluralism
Idem.
Full text
58
Full text
58
Idem.
Full text
58
08/07/ V
1999
08/07/ V
1999
Idem.
Full text
58
Idem.
Full text
58
08/07/
1999
08/07/
1999
08/07/
1999
08/07/
1999
V
Idem.
Full text
58
V
Idem.
Full text
58
V
Idem.
Full text
58
V
Idem.
Full text
58
Idem.
Full text
58
Idem.
Full text
58
Idem.
Full text
58
08/07/ V
1999
08/07/ V
1999
08/07/ NV
1999
08/07/ V
1999
08/07/ NV
1999
6
39
24762/94
40
Dalban v. Romania
28114/95
41
Öztürk v. Turkey
22479/93
28/09/ V
1999
42
Wille v. Liechtenstein
28396/95
28/10/ V
1999
43
Nilsen &
Norway
v. 23118/93
25/11/ V
1999
44
45
Hashman & Harrup v. the 25594/94
United Kingdom
T. v. the United Kingdom 24724/94
46
V. v. the United Kingdom
47
News Verlags GmbH v. 31457/96
Austria
48
Fuentes Bobo v. Spain
39293/98
29/02/ V
2000
49
Özgür Gündem v. Turkey
23144/93
16/03/ V
2000
50
Andreas Wabl v. Austria
24773/94
21/03/ NV
Johnsen
08/07/ V
1999
28/09/ V
1999
25/11/
1999
16/12/
1999
16/12/
1999
11/01/
2000
Idem.
Full text
58
Full text
59
Full text
59
Full text
61
Full text
61
Full text
62
V6
Political expression, exaggeration,
criminal libel, duty of care for journalists,
public function, privacy, public watchdog
Political expression, incitement to crime,
hatred or hostility, public interest,
prevention of disorder or crime
Political expression, insult, critical
reporting, public debate, margin of
appreciation
Police brutality, defamation, receive and
impart information, exaggeration, public
debate, limits of acceptable criticism
Unlawful action, concept of behaviour
contra bonos mores, foreseeability
Fair trial, public interest
Full text
62
V6
Full text
62
V
Defamation, reputation, rights of others,
public concern, publication of photos,
presumption of innocence
Offensive information, criticism,
horizontal effect of human rights,
positive obligations, reputation, rights of
others, employment relations, dismissal
Critical media reporting, separatist
propaganda, racism, political expression,
positive obligations , horizontal effect of
human rights
Political expression, defamation, Nazism,
Full text
63
Full text
64
Full text
64
Full text
65
V
7
51
Bergens
Norway
52
Erdogdu v. Turkey
53
Constantinescu
Romania
54
Sener v. Turkey
55
Tele 1
32240/96
Privatfernsehgesellschaft
MBH v. Austria
Lopes Gomes da Silva v. 37698/97
Portugal
56
Tidende
v. 26132/95
25723/94
v. 28871/95
26680/95
57
Du Roy & Malaurie v. 34000/96
France
58
Akkoç v. Turkey
59
Ibrahim Aksoy v. Turkey
60
Tammer v. Estonia
22947/93
and
22948/93
28635/95,
30171/96
and
34535/97
41205/98
2000
02/05/ V
2000
offensive information
Defamation, publication of photos,
reputation, rights of others, good faith,
public watchdog
15/06/ V
Propaganda against the territorial
2000
integrity of the State, terrorism, access,
receive information, prevention of
disorder or crime
27/06/ NV
Criminal defamation, criticism, public
2000
debate, interview, rights of others,
reputation
18/07/ V
Vital role of press, positive obligations,
2000
political expression, public interest,
receive information
21/09/ V & Allocation of broadcasting licence,
2000
NV
impart information, monopoly position of
the media
28/09/ V
Vital role of press, political expression,
2000
limits of acceptable criticism,
exaggeration, provocation
03/10/ V
Public interest, secrecy during
2000
investigation and enquiry procedures,
10/10/ NV
Interview, disciplinary sanction,
2000
separatist propaganda, incitement to
violence, armed resistance or an uprising
10/10/ V
2000
propaganda, incitement to violence
06/02/ NV
2001
Privacy, private information, politician,
public interest, defamation
8
Full text
66
Full text
68
Full text
68
Full text
70
Full text
71
Full text
71
Full text
73
Full text
75
Full text
75
Full text
76
61
Jerusalem v. Austria
62
B. & P. v. the United 36337/97
Kingdom
and
35974/97
Cyprus v. Turkey
25781/94
63
64
26958/95
65
VgT Vereinigung Tegen 24699/94
Tierfabriken
v.
Switzerland
Ekin Association v. France 39288/98
66
Feldek v. Slovakia
29032/95
67
Perna v. Italy
48898/99
68
Thoma v. Luxembourg
38432/97
69
Marônek v. Slovakia
32686/96
70
Bankovic & others
Belgium & others
71
E.K. v. Turkey
72
Unabhängige
v. 52207/99
28496/95
Initiative 28525/95
27/02/ V
2001
24/04/ NV
2001
Political expression, public debate, facts
or value judgments
Privacy, protection of vulnerable persons,
necessity
Full text
77
Full text
79
10/05/ V
2001
Conflict between State Parties,
censorship of school-books, restricted
distribution and importation media
Television, political advertising,
positive obligations
Insult of foreigners, discrimination based
on foreign origin
Facts or value judgments, political
speech, public interest, common
knowledge, limits of acceptable criticism
Full text
80
Full text
81
Full text
83
Full text
84
Responsible journalism, good name and
reputation, public interest
reputation, quoting other media sources,
Well-known information, public interest,
rule of law, good faith, reputation, rights
of others
NATO-bombing of TV station,
inadmissible, jurisdiction, treaty
obligations of State Parties
Full text
85
Full text
87
Full text
88
Full text
89
Book, political expression, vital role of
press, receive information
Political expression, political debate,
Full text
90
Full text
92
28/06/ V
2001
17/07/ V
2001
12/07/ V
2001
25/07/ V
2001
29/03/ V
2001
19/04/ V
2001
12/12/ I
2001
07/02/ V
2002
26/02/ V
9
v.
2002
public interest, value judgment
v. 29271/95
26/02/ V
2002
Full text
92
74
Krone Verlag GmbH & 34315/96
Co. KG v. Austria
26/02/ V
2002
Full text
92
75
De Diego Nafría v. Spain
46833/99
14/03/ NV
2002
Full text
94
76
Gaweda v. Poland
26229/95
Full text
95
77
Nikula v. Finland
31611/96
14/03/ V
2002
21/03/ V
2002
Full text
97
78
McVicar v. the United 46311/99
Kingdom
Colombani & others v. 51279/99
France
02/05/ NV
2002
25/06/ V
2002
Full text
99
Full text
100
02/07/ V 11
2002
Full text
101
81
Wilson & NUJ v. the 30668/96,
United Kingdom
30671/96
and
30678/96
Yagmuredereli v. Turkey
29590/96
Political expression, criticism, offensive
information, public interest, value
judgments
Political expression, publication of
photos, vital role of press, public interest,
privacy
Defamation, criticism, limits of
acceptable criticism, public interest,
employment relation
Lack of clarity, accessible and
foreseeable, printed media
Defamation, criticism, fair trial, potential
chilling effect of criminal sanctions,
lawyer
Defamation, public interest, well-known
sports figures, factual evidence
reputation, public watchdog, public
function of press
Journalism, freedom of assembly and
association, necessity
Full text
103
82
Seher Karatas v. Turkey
33179/96
09/07/ V
2002
Full text
103
83
Stambuk v. Germany
37928/97
17/10/ V
Political expression, criticism, terrorism,
separatist propaganda, violence, national
security
incitement to hatred or hostility, national
security
Medical advertising, rights of others,
Full text
104
73
79
80
Informationsvielfalt
Austria
Dichand & others
Austria
04/06/ V
2002
10
2002
84
Ayse Öztürk v. Turkey
24914/94
15/10/ V
2002
85
Karakoç
Turkey
15/10/ V
2002
86
v. 27692/95,
28138/95
and
28498/95
Demuth v. Switzerland
38743/97
87
Yalçin Küçük v. Turkey
88
Dicle on behalf of DEP 25141/94
(Democratic Party) v.
Turkey
A. v. the United Kingdom 35373/97
89
90
91
92
93
94
&
others
28493/95
Roemen & Schmit v. 51772/99
Luxembourg
Peck v. the United 44647/98
Kingdom
Cordova v. Italy (Nos. 1 & 40877/98
2)
and
45649/99
Perna v. Italy [Grand 48898/99
Chamber]
Pedersen & Baadsgaard v. 49017/99
Denmark
protect health, commercial speech, public
interest
Political expression, terrorism, incitement Full text
to violence, public debate, positive
obligation
Political expression, public watchdog,
Full text
separatist propaganda, positive obligation
05/11/ NV
2002
05/12/ V
2002
106
106
Allocation of broadcasting licence, media
pluralism, margin of appreciation
propaganda, receive information, positive
obligation
Political expression, criticism, positive
obligation
Full text
108
Full text
110
Full text
110
Political expression, right of access,
defamation, discrimination, privacy
Full text
112
Full text
114
Full text
116
30/01/ V 6
2003
Protection of sources, search of homes,
privacy, responsible journalism
Privacy in public areas, reasonable
expectation of privacy, CCTV, media
reporting
Defamation, insult, duties and
responsibilities, public interest, reputation
06/05/ NV
2003
19/06/ NV
2003
10, 6
reputation, defamation
reputation, public interest, defamation,
10/12/ V
2002
17/12/ NV 6,
2002
8, 13,
14
25/02/ V
2003
28/01/ V 8
2003
11
Full text: 118
No. 1
No. 2
Full text 120
Full text
122
95
Murphy v. Ireland
44179/98
96
Ernst & others v. Belgium
33400/96
97
Karkin v. Turkey
43928/98
98
Kizilyaprak v. Turkey
27528/95
99
Müslüm Gündüz v. Turkey 35071/97
100
Abdullah Aydin v. Turkey
42435/98
101
Radio France v. France
53984/00
102
Von Hannover v. Germany 59320/00
103
Österreichischer Rundfunk 57597/00
v. Austria
104
Plon v. France
105
Denmark
[Grand
56148/00
libel, facts or value judgments
10/07/ NV
Broadcasting prohibition, religious
2003
advertising, margin of appreciation
15/07/ V 10, Protection of sources, journalism,
2003
8
overriding public interest
23/09/ V
Political expression, hate speech,
2003
discrimination, racism
02/10/ V
Receive information, separatist
2003
propaganda, hate speech based on ethnic
ad regional differences
04/12/ V
Critical media reporting, political
2003
expression, religious intolerance, positive
obligations, shocking or offensive
information, live studio debate, hatred or
hostility, pluralism
09/03/ V
Political expression, incitement to hatred
2004
or hostility, social, ethnic and regional
differences
30/03/ NV
Privacy, good name and reputation,
2004
responsible journalism, exaggeration,
provocation
24/06/ V 8
Privacy in public areas, continual
2004
harassment, public interest, conflicting
human rights
25/05/ I
Public broadcasting organisation,
2004
publication of photos without consent,
private interest, neo-Nazism
18/05/ V
Privacy, public interest, medical
2004
confidentiality, journalistic ethics, rights
of others
17/12/ NV
2004
12
Full text
123
Full text
124
Full text
125
Full text
126
Full text
127
Full text
128
Full text
129
Full text
131
Full text
133
Full text
135
Full text
136
106
107
Chamber]
Cumpana & Mazare v. 33348/96
Romania
109
Steel & Morris v. the 68416/01
United Kingdom
Independent News and 55120/00
Media v. Ireland
Grinberg v. Russia
23472/03
110
IA v. Turkey
111
Wirtschafts-Trend
58547/00
Zeitschriften-Verlags
GmbH v. Austria
Tourancheau & July v. 53886/00
France
108
112
113
42571/98
114
Nordisk Film & TV A/S v. 40485/02
Denmark
Giniewski v. France
64016/00
115
Özgür Radyo v. Turkey
64178/00,
64179/00,
64181/00,
64183/00,
64184/00
17/12/ V
Defamation, insult, limits of acceptable
2004
criticism, factual basis or value
judgments, reputation, privacy, chilling
effect, public watchdog
15/02/ V 10, Defamation, libel, potential chilling
2005
6
effect, reputation, public debate
16/06/ NV
Political expression, defamation, libel,
2005
chilling effect, margin of appreciation
21/07/ V
Defamation, political expression, facts
2005
and value judgments, public function of
press, public watchdog, limits of
acceptable criticism, public function ,
13/09/ NV
Religious insult, rights of others,
2005
provocative opinions, abusive and
27/10/ V
Limits of acceptable criticism, political
2005
expression, defamation, high degree of
tolerance, public interest
24/11/ NV
Crime reporting, necessity, reputation,
2005
rights of others, presumption of
innocence
08/12/ NV
Protection of sources, vulnerable persons,
2005
positive obligations, major crime
31/01/ V
Religion, defamation, religious insult,
2006
offensive information, hate speech
30/03/ V
Suspension of broadcasting licences,
2006
political expression, positive obligations,
hate speech, political expression, public
order
13
Full text
138
Full text
140
Full text
142
Full text
144
Full text
146
Full text
147
Full text
149
Full text
151
Full text
153
Full text
155
116
Stoll v. Switzerland
69698/01
25/04/ V
2006
117
Dammann v. Switzerland
77551/01
25/04/ V
2006
118
Tatlav v. Turkey
50692/99
119
Erbakan v. Turkey
59405/00
02/02/ V
2006
06/07/ V
2006
120
Matky v. Czech Republic
19101/03
10/07/ I
2006
121
Monnat v. Switzerland
73604/01
21/09/ V
2006
122
White v. Sweden
42435/02
19/09/ NV 8
2006
123
Klein v. Slovakia
72208/01
124
125
Leempoel & S.A. Ed. Cine 64772/01
Revue v. Belgium
Radio Twist v. Slovakia
62202/00
31/10/ V
2006
09/11/ NV
2006
19/12/ V
2006
126
Mamère v. France
12697/03
07/11/ V
14
Confidential information, criticism,
public watchdog, exaggeration,
provocation, public debate, journalistic
ethics
Confidential information, public
discussion, vital role of press, public
watchdog, newsgathering
expression, positive obligations, religion
Political debate, political expression, hate
speech, intolerance, incitement to hatred
or hostility, religion
Receive information, access to public or
administrative documents, positive
obligations, rights of others, national
security, public health, public interest
Broadcasting, critical reporting , public
interest, positive obligations, antiSemitism, politically engaged journalism,
journalistic ethics, public watchdog
defamation, exaggeration, provocation,
journalistic ethics, positive obligation,
public interest, conflicting human rights
reputation, religion, critically comment
Censorship, privacy, strictly confidential
correspondence, public interest
Privacy, political information, public
interest, use of illegally recorded
telephone conversation
Full text
157
Full text
159
Full text
160
Full text
161
Full text
163
Full text
165
Full text
167
Full text
169
Full text
170
Full text
172
Full text
174
2006
127
Österreichischer
35841/02
sterreichischer Rundfunk
v. Austria
Nikowitz v. Verlagsgruppe 5266/03
News GmbH v. Austria
07/12/ V
2006
129
Tønsberg Blad AS & 510/04
Marit Haukom v. Norway
01/03/ V
2007
130
Colaço Mestre & SIC v. 11182/03
Portugal
and
11319/03
Dupuis & others v. France 1914/02
26/04/ V
2007
128
131
132
Hachette
Filipacchi 71111/01
Associés v. France
133
Lionarakis v. Greece
134
Glas Nadezhda EOOD & 14134/02
Elenkov v. Bulgaria
135
Filatenko v. Russia
136
Stoll
v.
1131/05
73219/01
Switzerland 69698/01
reputation, defamation, libel, public
interest, political expression,
private interest , neo-Nazism
Defamation, value judgments, wellknown information, humorous
commentary, acceptable satire, public
interest
Criticism, defamation, reputation, right to
receive information, public interest, good
faith, journalistic ethics, duty to verify
factual allegations
Interview, public interest, defamation,
journalistic ethics
22/02/ V
2007
07/06/ V
2007
Confidential but well-known information,
public interest, public watchdog, chilling
effect, newsgathering
14/06/ NV
Rights of others, privacy, human dignity,
2007
very high circulation of information,
accessibility and foreseeability
05/07/ V 10, Political expression, radio broadcast,
2007
6
defamation, facts or value judgments,
value judgments with factual basis
11/10/ V 10, Allocation of radio licence, religion, lack
2007
13
of motivation of the judgment,
transparency, licensing procedure
06/12/ V
Defamation, public interest, reputation,
2007
good faith, journalistic ethics
10/12/ NV
15
Full text
176
Full text
177
Full text
178
Full text
180
Full text
182
Full text
184
Full text
186
Full text
188
Full text
190
Full text
192
[Grand Chamber]
2007
137
Nur Radyo v. Turkey
6587/03
138
11369/03
139
Voskuil
Netherlands
140
27/11/ V
2007
04/12/ V
2007
The 64752/01
22/11/ V
2007
Tillack v. Belgium
20477/05
141
Guja v. Moldova
14277/04
27/11/ V
2007
12/02/ V
2008
142
Yalçin Küçük v. Turkey 71353/01
(No. 3)
Meltex Ltd. & Mesrop 32283/04
Movsesyan v. Armenia
22/04/ V
2008
17/06/ V
2008
144
Flux (No. 6) v. Moldova
22824/04
29/07/ NV
2008
145
Petrina v. Romania
78060/01
146
Leroy v. France
36109/03
14/10/ V 8
2008
02/10/ NV
2008
143
v.
ethics
Broadcasting licence, religion, shocking
or offensive information, hate speech
order
Confidential information, protection of
sources, integrity of the police and
judicial authorities, right to remain silent,
public watchdog
Protection of sources, searches of homes
and workplaces, public watchdog
Whistleblowing, public interest,
journalistic ethics, duties and
responsibilities, good faith, chilling
effect, employment relation
Incitement to hatred or hostility,
separatism, necessity
Non-discriminatory allocation of
frequencies or broadcasting licences,
licencing procedure
Criticism, sensationalism, defamation,
journalistic ethics, unprofessional
behaviour, chilling effect, lack of factual
basis for allegations
Privacy, positive obligation, defamation,
libel, reputation
Public interest, artistic expression,
glorifying terrorism, political expression,
16
Full text
194
Full text
194
Full text
196
Full text
196
Full text
198
Full text
200
Full text
201
Full text
203
Full text
205
Full text
207
147
TV Vest SA Rogaland 21132/05
Pensjonistparti v. Norway
148
Khurshid
Mustafa
Tarzibachi v. Sweden
149
Times Newspapers Ltd. 3002/03
(Nos. 1 & 2) v. the United and
Kingdom
23676/03
150
Faccio v. Italy
33/04
151
A. v. Norway
28070/06
152
TASZ v. Hungary
37374/05
153
Kenedi v. Hungary
31475/05
154
Féret v. Belgium
15615/07
155
Wojtas-Kaleta v. Poland
20436/02
156
Manole
&
others
& 23883/06
v. 13936/02
activism, cartoon
11/12/ V
Television, political advertising, positive
2008
obligation, margin of appreciation,
pluralism
16/12/ V
Language of television, freedom to
2008
receive information, positive obligation,
horizontal effect, disproportionality of the
interference
10/03/ NV
Internet, internet publication rule,
2009
defamation, libel, education, historical
research, responsible journalism, news
archives
31/03/ I
Disproportionate measure, right to
2009
receive information, privacy, licence fee.
09/04/ V 8
Crime reporting, defamation,
2009
presumption of innocence, privacy,
margin of appreciation, moral and
psychological integrity, protection of
minors
14/04/ V
Access to information, public or official
2009
documents, open government, indirect
censorship, personal information of a
politician, social watchdog
26/05/ V 10, Access to information, public or official
2009
6, 13
documents, public watchdog
16/07/ NV
Hate speech, insult of foreigners, political
2009
expression, election campaign, public
debate
16/07/ V
Public interest, pluralism, facts or value
2009
judgments, duties and responsibilities,
good faith, employment relation
17/09/ V
Broadcasting licences, political
17
Full text
209
Full text
211
Full text
213
Full text
215
Full text
216
Full text
218
Full text
220
Full text
222
Full text
224
Full text
226
Moldova
2009
30/06/ V
2009
158
VgT Vereinigung gegen 32772/02
Tierfabriken
v.
Switzerland
(No.
2)
[Grand Chamber]
Pasko v. Russia
69519/01
159
Ürper & others v. Turkey
157
160
161
14526/07,
14747/07,
15022/07,
15737/07,
36137/07,
47245/07,
50371/07,
50372/07
and
54637/07
Financial Times & others 821/03
v. the United Kingdom
Laranjeira Marques da 16983/06
Silva v. Portugal
162
Alfantakis v. Greece
163
Flinkkilä & others v. 25576/04
Finland
Jokitaipale & others v. 43349/05
Finland
164
49330/0
independence political independence of
media, pluralism, censorship, public
service broadcasting
Full text
228
22/10/ NV
2009
20/10/ V
2009
Confidential information, state secrets,
national security, military information
Terrorism, suspension of publication and
distribution of newspaper, public
watchdog
Full text
231
Full text
233
15/12/ V
2009
19/01/ V
2010
Protection of journalistic sources, a
source acting in bad faith, public interest
Political expression, defamation, facts or
value judgments, reputation, public
interest
Full text
235
Full text
238
11/02/ V
2010
Television interview, defamation, insult,
reputation, live broadcasting, facts or
value judgments
Journalism, well-known public figures,
privacy, public interest
Full text
240
Full text
242
Full text
242
06/04/ V
2010
06/04/ V
2010
18
165
166
167
Iltalehti & Karhuvaara v. 6372/06
Finland
Soila v. Finland
6806/06
Tuomela & others
Finland
Renaud v. France
v. 25711/04
169
Jean-Marie
France
v. 18788/09
170
Akdas v. Turkey
41056/04
171
Fatullayev v. Azerbaijan
40984/07
172
Andreescu v. Romania
19452/02
173
Aksu v. Turkey
4149/04
and
41029/04
174
Sanoma
v.
Netherlands
Gillberg v. Sweden
168
175
Le
13290/07
Pen
The 38224/03
41723/06
06/04/
2010
06/04/
2010
06/04/
2010
25/02/
2010
V
V
V
V
Internet, political speech, criticism,
emotional political debate, tolerance,
facts or value judgments, chilling effect
20/04/ I
Offensive information, hate speech,
2010
political debate, reputation, rights of
others, exaggeration, provocation
16/02/ V
Artistic expression, obscene or immoral
2010
information, fiction,
exaggeration, humorous, duties and
responsibilities, protection of morals
22/04/ V
Sensitive and offensive information,
2010
defamation, terrorism, historical truth,
public watchdog, disproportionate
sanction, order of immediate release from
prison
08/06/ V 10, Access, defamation, insult, reputation,
2010
6
facts or value judgments, public debate,
good faith
27/07/ NV
Positive obligations, vulnerable groups,
2010
14, 8
margin of appreciation, racial
discrimination, racism, cultural diversity,
privacy
14/09/ V
Protection of journalistic sources, public
2010
interest, public watchdog
02/11/ NV
2010
10, 8
documents, confidential information,
19
Full text
242
Full text
242
Full text
242
Full text
244
Full text
246
Full text
248
Full text
250
Full text
253
Full text
255
Full text
257
Full text
259
176
privacy, scientific research, open
government, academic freedom
Broadcasting licence, religion, rule of
law, positive obligations,
42284/05
12/10/ V
2010
39401/04
179
Nur Radyo Ve Televizyon
Yayıncıliğı A.Ş. v. Turkey
(No. 2)
MGN Ltd. v. United
Kingdom
Yleisradio Oy & others v.
Finland
Otegi Mondragon v. Spain
18/01/ V
2011
08/02/ NV
2011
15/03/ V
2011
180
RTBF v. Belgium
50084/06
181
Mosley v.
Kingdom
182
Sigma Radio Television 32181/04
Ltd. V. Cyprus
and
35122/05
21/07/ NV
2011
10, 14
183
Sipoş v. Romania
26125/04
03/05/ V 8
2011
184
Karttunen v. Finland
1685/10
10/05/ I
2011
185
Avram & others v. 41588/05
Moldova
Standard News Verlags 34702/07
177
178
186
the
30881/09
2034/07
United 48009/08
29/03/ V
2011
10/05/ NV 8
2011
05/07/ V 8
2011
10/01/ V
20
Public interest, privacy, chilling effect,
disproportionality of interference
Defamation, confidential and sensitive
information, privacy, private persons,
Political expression, insult, value
judgments, honour, privacy, dignity,
public debate, exaggeration, provocation
Broadcasting, patients’ rights, impart
information, prior restraint, censorship,
foreseeability of law
Privacy, positive obligation,
prenotification, public interest, , margin
of appreciation, chilling effect
Rights of others, decisions by
independent media regulators, budget
neutrality, margin of appreciation,
discrimination
Journalism, defamation, insult, privacy,
positive obligations, chilling effect of
criminal sanctions
Internet, possession and reproduction of
child pornography, illegal content, artistic
expression
Privacy, positive obligation, undercover
video , journalism
Full text
263
Full text
264
Full text
266
Full text
267
Full text
269
Full text
271
Full text
273
Full text
275
Full text
277
Full text
279
Full text
281
GmbH v. Austria (No. 3)
2012
Axel Springer AG v. 39954/08
Germany
(No. 2)
and
60614/08
Tusalp v. Turkey
32131/08
and
41617/08
07/02/
2012
07/02/
2012
190
Aksu v. Turkey [Grand 4149/04
Chamber]
and
41029/04
15/03/
2012
191
Vejdeland & others v. 1813/07
Sweden
Gillberg v. Sweden [Grand 41723/06
Chamber]
09/02/
2012
03/04/
2012
193
Frasilă and Ciocirlan v. 25329/03
Romania
10/05/
2012
194
Centro Europa 7 S.r.l. and 38433/09
Di Stefano v. Italy
07/06/
2012
195
Mouvement raëlien suisse 16354/06
v. Switzerland
13/07/
2012
196
Schweizerische
21/06/
187
188
189
192
Radio- 34124/06
21/02/
2012
reputation, public interest, public figure,
defamation, libel
V
Privacy, reputation, receive information,
NV 8 Privacy in public areas, public interest,
entertainment press, conflicting human
rights
V
Defamation, journalistic freedom of
expression, value judgments, Prime
Minister’s personality rights, margin of
appreciation
NV 8 Positive obligations, vulnerable groups,
privacy
NV
Hate speech, homophobia, insult
homosexuals, pamphlets, school
NV
V
Positive obligations, access, rights of
others, public debate, public watchdog,
pluralism
V 10, Dominant position over the audiovisual
APmedia, allocation of frequencies, media
1(1)
pluralism, right to receive information
NV
Internet, illegal content, poster campaign,
aliens, proselytising speech, the
protection of morals, health, rights of
others and prevention of crime
V
Television interview, political and
21
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283
Full text
283
Full text
285
Full text
287
Full text
289
Full text
291
Full text
293
Full text
295
Full text
297
Full text
299
und Fernseh gesellschaft
SRG v. Switzerland
2012
197
Ressiot & others v. France
198
Szima v. Hungary
199
Telegraaf
Media 39315/06
Nederland
Landelijke
Media B.V. & Others v.
the Netherlands
Nenkova-Lalova
v. 35745/05
Bulgaria
Ahmet Yildirim v. Turkey 3111/10
200
201
15054/07
and
15066/07
29723/11
202
Ashby Donald & Others v. 36769/08
France
203
Frederik Neij & Peter 40397/12
Sunde Kolmisoppi (The
Pirate Bay) v. Sweden
(dec.)
Eon v. France
26118/10
204
205
Saint-Paul
Luxembourg 26419/10
S.A. v. Luxembourg
206
Animal
Defenders 48876/08
economic expression, rights of others,
public interest, privacy, security, margin
of appreciation, public interest
28/06/ V
Protection of sources, disproportionality
2012
of interference, searches of offices of
newspapers, searches of homes
09/10/ NV
Internet, criticism, labour union,
2012
disciplinary sanction
22/11/ V
Protection of journalistic sources,
2012
intelligence and security services,
surveillance, coercive measures, ex ante
review
11/12/ NV
Dismissal of journalist, disciplinary
2012
sanction
18/12/ V
Internet, defamation, blocking of Google
2012
Sites, disproportionate measure,
prescribed by law
10/01/ NV
Intellectual property, unauthorised
2013
reproduction of fashion photos, Internet,
margin of appreciation, news reporting
exception, commercial speech
19/02/ I
Copyright, The Pirate Bay, Internet file2013
sharing service, illegal use of copyrightprotected music, conviction, margin of
appreciation
14/03/ V
Insult of President, discussion of matters
2013
of public interest, private life or honour,
satire, chilling effect
18/04/ V 10, Protection of journalistic sources, search
2013
8
and seizure, identification of author,
proportionality
22/04/ NV
Public debate, ban on political
22
Full text
301
Full text
303
Full text
305
Full text
307
Full text
309
Full text
311
Full text
313
Full text
315
Full text
317
Full text
319
International v. the United
Kingdom
[Grand
Chamber]
Meltex Ltd. v. Armenia 45199/09
(dec.)
2013
208
Youth
Initiative
for 48135/06
Human Rights v. Serbia
25/06/ V
2013
209
Nagla v. Latvia
16/07/ V
2013
210
Węgrzynowski
and 33846/07
Smolczewski v. Poland
16/07/ NV
2013
10, 8
211
(No. 3)
19/09/ NV 8
2013
212
Belpietro v. Italy
24/09/ V
2013
207
73469/10
43612/10
21/05/ I
2013
23
advertising, NGO, powerful financial
groups, access, influential media,
alternative media, margin of appreciation
Broadcasting licence, licensing body,
arbitrary interference, procedural
safeguards, domestic enforcement of
Court’s judgment, fresh violation of
freedom of expression
Access to documents held by public
authorities, NGO, electronic surveillance
measures, freedom of information
legislation, public debate, public interest,
public watchdog
Protection of journalistic sources, search
and seizure, chilling effect, safeguards
against abuse, pressing social need
Personality rights, online news media,
digital archives, public watchdog,
privacy, libel, rectification
Photograph, injunction prohibiting
further publication, debate of general
interest, public figure, privacy, freedom
of the press, positive obligations
Freedom of parliamentary speech,
parliamentary immunity, defamation,
public officials, conviction, editorial
control, chilling effect
Full text
321
Full text
323
Full text
325
Full text
327
Full text
329
Full text
330
Back to overview of case-law
INTRODUCTION
Prof. dr. Dirk Voorhoof
(Ghent University and Copenhagen University)
Since its inception in 1995, IRIS – Legal Observations of the European Audiovisual Observatory
has given a prominent place to the European Court of Human Rights’ (‘ECtHR’, or ‘the Court’)
jurisprudence on the right to freedom of expression and information, in particular as regards
audiovisual media, film and journalism. Its very first issue of January 1995 included focuses on
two judgments with specific relevance for audiovisual media and film. The judgment in the case
Otto-Preminger-Institut v. Austria (20 September 1994) concerned the seizure and forfeiture of a
film (Das Liebeskonzil) considered blasphemous (at that time) by the Austrian authorities. The
Court found no violation of Article 10 of the (European) Convention for the Protection of Human
Rights and Fundamental Freedoms (‘ECHR’, or ‘the European Convention’), accepting the
reasoning that the overwhelming majority of Tyroleans would be offended in their religious feelings
by the mere fact of announcing and showing the film in a special featured programme in a cinema.
In Jersild v. Denmark (23 September 1994), the ECtHR came to the conclusion that it was not
necessary in a democratic society to convict a journalist for aiding and abetting in the dissemination
of racist remarks made by extremist youths in a television programme. The Court was of the
opinion that the punishment of a television news journalist for assisting in the dissemination of
racist statements made by another person in an interview would seriously hamper the contribution
of the press to discussion of matters of public interest. It also stated that it was not for the courts or
judges “to substitute their own views for those of the press as to what technique of reporting should
be adopted by journalists” and that “news reporting based on interviews, whether edited or not,
constitutes one of the most important means whereby the press is able to play its vital role as public
watchdog”. In this case, the ECtHR found a violation of Article 10, ECHR, by the Danish
authorities.
These were certainly not the first important judgments related to freedom of expression and
information with special relevance for audiovisual media, film and journalism. Before 1995
when IRIS was launched, other landmark judgments on freedom of expression and media had
already been delivered by the ECtHR, interpreting and applying the European Convention as a
binding instrument of human rights protection in Europe. The ECtHR found violations of the
right to freedom of expression and information in the cases: Sunday Times no. 1 v. the United
Kingdom (26 April 1979; pre-trial reporting in the media); Lingens v. Austria (8 July 1986; right
to criticise a politician and the distinction between allegations of facts and value-judgments, the
latter not being susceptible of proof), and Thorgeir Thorgeirson v. Iceland (25 June 1992; the
right to comment critically on alleged police brutalities).
The very first judgments with specific relevance for the audiovisual media were Groppera
Radio AG a.o. v. Switzerland (28 March 1990) and Autronic AG v. Switzerland (22 May 1990).
In Groppera, a ban on the retransmission by cable networks of the programmes of a Swiss radio
station, having evaded the Swiss broadcasting law by establishing its transmitters in Italy, was
not considered to be a violation of Article 10, ECHR. In Autronic AG, the refusal by the Swiss
authorities to grant an authorisation to install a satellite dish for receiving television programmes
broadcast by a telecommunications satellite was considered a violation of Article 10, ECHR,
24
thereby explicitly recognising the right to receive broadcast television programmes. Many years
later, in Khurshid Mustafa and Tarzibachi v. Sweden (16 December 2008), the Court emphasised
the importance of the right to receive television programmes in one’s own language in a case
where Swedish nationals of Iraqi origin had been forced to move from their rented flat as they
had refused to remove a satellite dish in their flat after the landlord had initiated proceedings
against them. The landlord considered the installation of a satellite antenna as a breach of the
tenancy agreement that stipulated that ‘outdoor antennae’ were not allowed to be set up on the
house. The ECtHR, however, considered the eviction of the family as a disproportionate measure
amounting to a violation of Article 10, ECHR.
One of the first ECtHR judgments to be brought to the attention of the IRIS-readership (IRIS
1996/4) was the judgment in the case of Goodwin v. the United Kingdom. A few months earlier,
the editorial in IRIS 1996/1 had already announced this forthcoming ‘landmark judgment’ on the
protection of journalistic sources. In its judgment of 27 March 1996, the ECtHR came to the
conclusion that a disclosure order requiring a British journalist to reveal the identity of his source
and the fine imposed upon him for having refused to do so, constituted a violation of the right to
freedom of expression and information as protected by Article 10 of the European Convention.
Another judgment reported in IRIS in 1996 was the case of Wingrove v. the United Kingdom (25
November 1996): the decision by the British Board of Film Classification (BBFC) to reject
classification of a blasphemous film (Visions of Ecstasy) and hence the prohibition to distribute
the film in the United Kingdom was not considered to be a breach of Article 10 of the
Convention. It was certainly a controversial judgment at the time. In January 2012, the BBFC
gave the film an 18-certificate, with no cuts or alterations to the original film's content, after the
United Kingdom had repealed its blasphemy laws in 2008.
Over the years, IRIS has highlighted a long series of ECtHR judgments relating to freedom of
expression, illuminating important developments and their consequences for media regulation
and policy in the Council of Europe and its member states. In the first period, 1995-2000, a
substantial sample of the judgments dealing with freedom of expression, media and journalism
could be reported on, selecting those cases with a general, important or innovative impact on the
interpretation of Article 10, ECHR. Gradually, and especially since 2001, IRIS was confronted
with an increasing amount of judgments being delivered by the European Court dealing with
freedom of expression and information. As a strict selection had to be made every month, not all
important judgments could be reported. Therefore, priority was given to those judgments with
specific importance for the sector of film, broadcasting, audiovisual media services and later also
internet. The selection of summaries of judgments dealing with Article 10, ECHR, gives a
valuable overview of the case-law in these fields, without excluding those judgments which are
of general importance for the functioning of all media and journalism in a democratic society.
The latter category of judgments includes the Court’s case-law dealing with: protection of
journalistic sources (Goodwin v. the United Kingdom, Roemen and Schmit v. Luxembourg, Ernst
a.o. v. Belgium, Voskuil v. the Netherlands, Tillack v. Belgium, Financial Times a.o. v. the
United Kingdom, Sanoma Uitgevers B.V. v. the Netherlands, Ressiot a.o. v. France, Telegraaf
Media Nederland Landelijke Media B.V. and Others v. the Netherlands, Saint-Paul Luxembourg
S.A. v. Luxembourg, and most recently, Nagla v. Latvia); access to public or official documents
25
(TASZ v. Hungary, Kenedi v. Hungary, Gillberg v. Sweden and Youth Initiative for Human
Rights v. Serbia) and whistleblowing (Guja v. Moldova). It also includes the case-law balancing
the right to freedom of expression with the right to privacy (Peck v. the United Kingdom, Radio
France v. France, Von Hannover no. 1, no. 2 and no. 3 v. Germany, Plon v. France, Tammer v.
Estonia, Radio Twist v. Slovakia, Petrina v. Romania, White v. Sweden, Mosley v. the United
Kingdom, Avram a.o. v. Moldova and Axel Springer AG v. Germany). Many other cases dealt
with responsible journalism in relation to allegations of facts tarnishing the good name and
reputation of others (Perna v. Italy, Pedersen and Baadsgaard v. Denmark, Thoma v.
Luxembourg, Colombani v. France, Klein v. Slovakia, Mamère v. France, Standard Verlags
GmbH v. Austria or Belpietro v. Italy).
It also became clear that the impact of the European Convention on Human Rights was
increasing as a result of the growing number State Parties to the Convention in the 1990s, after
the fall of the Berlin Wall in 1989. Consequently, the first judgments in which the ECtHR
decided on alleged violations of Article 10 in the new member states were soon reported on in
IRIS. In the new member states’ transition towards democracy, transparency, pluralism and
diversity, the Court’s case-law demonstrated that the authorities in those states did not always
adequately respect the right to freedom of expression and information (e.g., Dalban v. Romania,
Feldek v. Slovakia, Gaweda v. Poland, Grinberg v. Russia, Klein v. Slovakia, Glas Nadezhda
EOO & Elenkov v. Bulgaria, Meltex Ltd. & Mesrop Movsesyan v. Armenia, Filatenko v. Russia
and Manole a.o. v. Moldova). Reflecting the Court’s case-law output, very often cases were
reported in which the Court had found violations by the Turkish authorities regarding freedom
of the media, the right of critical media reporting and freedom of (political) expression, such as
in Özgür Gündem v. Turkey, Müslum Gündüz v. Turkey, Nur Radio and Ozgür Radio v. Turkey,
Aydin Tatlav v. Turkey, Nur Radyo Ve Televizyon Yayinciligi AS v. Turkey and in Tuşalp v.
Turkey, a case about a defamatory article criticising the Turkish Prime Minister. In the latter
case, the Court came to the conclusion that the domestic courts had failed to establish
convincingly any pressing social need for putting the Prime Minister’s personality rights above
the journalist’s rights and the general interest in promoting the freedom of the press where issues
of public interest are concerned.
In other judgments, the Court has made clear that hate speech is intolerable in a democratic
society, whether it is directed against foreigners (Féret v. Belgium) or homosexuals (Vejdeland
a.o. v. Sweden), or whether it concerns religious insult (I.A. v. Turkey). Some judgments found
that too far-reaching restrictions had been imposed on political advertising on television, such as
in Verein gegen Tierfabriken v. Switzerland and in TV Vest SA and Rogaland Pensjonistparti v.
Norway, while the Court accepted a general ban in Ireland on the broadcasting of religious
advertising (Murphy v. Ireland) and a ban in the United Kingdom on political advertising on
television (Animal Defenders International v. the United Kingdom).
In recent years, the cases reported in IRIS have also reflected the growing impact of the Internet
and some of the specific legal issues related to it, such as in Times Newspapers Ltd., nos. 1 & 2
v. the United Kingdom, in which the Court accepted the application of the so-called “Internet
publication rule”, a British common-law rule according to which each publication of a
defamatory statement can give rise to a separate cause of action, with the implication that a new
26
cause of action accrues every time the defamatory material is accessed on the Internet. The Court
recognised the importance of the media’s internet archives for education and historical research,
emphasising the duty of the media to act in accordance with the principles of responsible
journalism, including by ensuring the accuracy of historical information. Another relevant case,
also reported on in IRIS, was Karttunen v. Finland, on the criminalisation of the possession and
reproduction of child pornography, freely downloaded from the Internet, and its compatibility
with freedom of (artistic) expression. In Mouvement raëlien Suisse v. Switzerland, the Court
found that the (illegal) content on a website referred to on a poster distributed by an organisation
could help to justify the Swiss authorities’ decision to ban a poster campaign by that
organisation. In this judgment, the Court also reiterated that the authorities are required, when
they decide to restrict fundamental rights, to choose the means that cause the least possible
prejudice to the rights in question. More recently, the Court has delivered judgments with an
important impact on Internet regulation and freedom of expression on the Internet, such as in
Ahmet Yildirim v. Turkey, Ashby Donald a.o. v. France, Neij and Sunde Kolmissopi (The Pirate
Bay) v. Sweden and Węgrzynowski and Smolczewski v. Poland. 1
Other issues reflected in the ECtHR’s case-law that has been regularly reported in IRIS concern:
media pluralism, non-discriminatory allocation of frequencies or broadcasting licences,
decisions by independent media regulators and procedural safeguards against arbitrary
applications of media law provisions (e.g. Demuth v. Switzerland, Glas Nadezhda EOOD and
Elenkov v. Bulgaria, Meltex Ltd. & Mesrop Movsesyan v. Armenia, Nur Radyo v. Turkey, Özgür
Radyo v. Turkey, Manole a.o. v. Moldova, Nur Radyo Ve Televizyon Yayinciliği A.Ş. v. Turkey
and Sigma Radio Television Ltd. v. Cyprus). In Centro Europe 7 S.r.l. and Di Stefano v. Italy,
the Grand Chamber of the European Court of Human Rights clarified that a situation whereby a
powerful economic or political group in society is permitted to obtain a position of dominance
over the audiovisual media and thereby exercise pressure on broadcasters and eventually curtail
their editorial freedom, undermines the fundamental role of freedom of expression in a
democratic society, as enshrined in Article 10 of the Convention. In this case, Centro Europa 7
especially referred to the dominant and influential position of the private broadcaster, Mediaset –
owned by the family of (former) Italian Prime Minister Silvio Berlusconi – being treated
preferentially and being the reason for the postponement for years of making frequencies
available for other broadcasting companies.
The last references to the Court’s case law regarding freedom of expression in the online
environment and media pluralism confirm the importance of the application of Article 10 of the
European Convention as part of the economic, technical and regulatory developments in the
European media landscape. The central issue remains that there should not be any restrictive
interferences with the right to freedom of expression and information, unless it can be pertinently
justified that the inference at issue is “necessary in a democratic society”. It is to be hoped that
the European Court of Human Rights will keep up its high standards of protection and promotion
1
More information on the case-law of the ECtHR dealing with online media and ICT can be found in the Fact Sheet,
“New technologies”, European Court of Human Rights Press Unit, October 2013. The fact sheet also mentions the
Court’s judgment in Delfi AS v. Estonia (not reported in this e-book, but forthcoming in IRIS in 2014), concerning
the liability of an Internet news portal for offensive comments that were posted by readers below one of its online
news articles.
27
of the right to freedom of expression and information, also in the new media environment.
Article 10, ECHR, is a living and dynamic instrument for the protection of the right of freedom
of expression and information in Europe’s democracies. IRIS and the European Audiovisual
Observatory will therefore continue reporting on the Court’s case-law related to media,
journalism and the Internet in the future.
28
European Court of Human Rights: Seizure of "blasphemous" film does not violate Article
10 ECHR
Ad van Loon
In its judgment of 20 September 1994, the European Court of Human Rights held that the seizure
and forfeiture of the film Das Liebeskonzil in May 1985 by the Austrian authorities, was not a
violation of Article 10 of the European Convention on Human Rights.
In this case, the applicant - the Otto-Preminger-Institut für audiovisuelle Mediengestaltung (OPI)
- had planned to show the film, in which God the Father is presented as old, infirm and
ineffective, Jesus Christ as a 'mummy's boy' of low intelligence and the Virgin Mary as an
unprincipled wanton. They conspire with the Devil to punish mankind for its immorality.
At the request of the Innsbruck diocese of the Roman Catholic Church, the Public Prosecutor
instituted criminal proceedings against OPI's manager on charge of "disparaging religious
doctrines" and seized the film under section 36 of the Austrian Media Act. On 10 October 1986
the Austrian Regional Court ruled that, since artistic freedom cannot be unlimited, in view of
"the particular gravity in the instant case - which concerned a film primarily intended to be
provocative and aimed at the Church - of the multiple and sustained violation of legally protected
interests, the basic right of artistic freedom will in the instant case have to come second." The
European Court of Human Rights accepted that the impugned measures pursued a legitimate aim
under Article 10 par. 2, namely "the protection of the rights of others", i.e., the protection of the
right of citizens not to be insulted in their religious feelings by the public expression of views of
others. The Court ruled that the Austrian courts, when ordering the seizure and subsequent
forfeiture of the film, justfiably held it to be an abusive attack on the Roman Catholic religion
according to the conception of the Tyrolean public. Since their judgments show that the Austrian
courts had due regard to the freedom of artistic expression and the content of the film can
support the conclusions arrived at by the national courts, the Court ruled that the seizure does not
constitute a violation of Article 10. In view of all the circumstances in this case, the Court
considered that the Austrian authorities had not overstepped their margin of appreciation. This
reasoning was also applied to the forfeiture of the film, which is said to be the normal sequel to
the seizure.
•
Otto-Preminger-Institut v. Austria, 20 September 1994, Series A no. 295-A.
IRIS 1995-1/1
29
European Court of Human Rights: Journalistic coverage of racist statements protected by
Article 10 ECHR
Ad van Loon
On 23 September 1994 the European Court of Human Rights ruled that the conviction and
sentence of a fine to a Danish television journalist for aiding and abetting the dissemination of
racist statements, constituted a violation of Article 10 of the European Convention for the
protection on Human Rights. The journalist, Mr Jersild, had interviewed a group of young racists
("the Greenjackets") for the Sunday News Magazine, which interview was broadcast on 21 July
1985 on Danish television. The three youths interviewed by the applicant were charged with
violating the Danish Penal Code for making racist statements and the journalist was subsequently
charged with aiding them. On 24 April 1987 the Danish City Court sentenced the applicant to a
fine of 1.000 Danish Krone because he had encouraged "the Greenjackets" to express their racist
views and he had been well aware in advance that discriminatory statements of a racist nature
were likely to be made during the interview.
The European Court of Human Rights focussed on the question whether the measures against the
applicant were "necessary in a democratic society". The Court said that news reporting based on
interviews constitutes one of the most important means whereby the press is able to play its vital
role of "public watchdog". The punishment of a journalist for assisting in the dissimination of
statements made by another person in an interview would seriously hamper the contribution of
the press to the discussion of matters of public interest. Taking the circumstances of the case into
consideration, the Court held that the reasons for the applicant's conviction and sentence were
not sufficient to establish convincingly that the interference with Mr Jersild's right to freedom of
expression was "necessary in a democratic society". In particular, the means employed were
considered disproportionate to the aim of protecting "the reputation or rights of others".
•
Jersild v. Denmark, 23 September 1994, Series A no. 298.
IRIS 1995-1/2
30
European Court of Human Rights: Bluf! v. the Netherlands
Ad van Loon
On 9 February 1995, the European Court of Human Rights ruled that the seizure by the Dutch
authorities of the cirulation of an issue of a left-wing weekly, containing a report of the Dutch
internal security service, constituted a violation of Article 10 of the ECHR. In the Spring of 1987
the weekly, called Bluf!, got access to a quarterly report of the Dutch internal security service,
which Bluf! decided to publish as a supplement to the issue of 29 April 1987. However, the
Amsterdam Regional Court (Rechtbank) ordered the seizure of the circulation of the issue
concerned before it was sent out to subscribers. Because the police had failed to take away the
offset plates from the printing press, the staff of Bluf! managed to reprint the issue. The reprinted
issues were sold on the streets of Amsterdam the next day, which was the Queen's birthday, a
national holiday. The authorities decided not to put a stop to this circulation so as to avoid any
public disorder. The request for the return of the confiscated copies was dismissed; the Dutch
Supreme Court (Hoge Raad) held that the seizure of printed matter to be distributed was, in this
case, justified under the Dutch Criminal Code. The European Court of Human Rights noted that
the seizure amounted to an interference in Bluf!'s freedom to impart information and ideas. The
Court ruled that, although the interference was "prescibed by law" and pursued a legitimate aim
(the protection of national security), the seizure and withdrawal was not "necessary in a
democratic society'" and therefore constituted a violation of Article 10 ECHR. The Court based
this ruling on its doubt whether the information in the report was sufficiently sensitive to justify
preventing its distribution, and furthermore on the fact that, since the issue was reprinted and
distributed, the information in question was made accessible to a large number of people; as a
result, protecting the information as a State secret was no longer justified and the withdrawal of
the issue no longer necessary to achieve the legitimate aim pursued.
•
Vereniging Weekblad Bluf! v. the Netherlands, 9 February 1995, Series A no. 306-A.
IRIS 1995-3/6
31
European Court of Human Rights: Vereinigung Demokratischer Soldaten Österreichs and
Gubi v. Austria
Ad van Loon
The European Court of Human Rights has held that the refusal of Austria to distribute a special
interest magazine among Austrian soldiers, constituted a violation of Article 10 of the European
Convention on Human Rights. The monthly magazine, called der Igel (the hedgehog) was aimed
at the soldiers serving in the Austrian army; it contained information and articles - often of a
critical nature - on military life. In 1987, the organisation that published der Igel requested the
Austrian Federal Defence Minister to have der Igel distributed in the barracks in the same way as
the other two military magazines. The minister decided that he would not authorise such a
distribution. In his opinion, only publications adhering to the constitutional duties of the army,
which did not damage its reputation and which did not lend column space to political parties,
should be supplied on military premises. The second applicant in this case, Mr Gubi - at that time
fulfilling his national service - had been ordered to stop the distribution of issue No. 3/87 of der
Igel in his barracks. A disciplinary penalty for distributing the magazine was imposed on Mr
Gubi, because of certain guidelines prohibiting the distribution of any publication in the barracks
without prior authorisation of the commanding officer.
The European Court of Human Rights held that the refusal by the Minister of Defence to allow
the distribution of der Igel in the same way as other magazines distributed by the army was
disproportionate of the legitimate aim pursued. Prohibiting Mr Gubi to distribute the magazine
also constituted a breach of Article 10 of the Convention, since the interference was not
"necessary in a democratic society".
•
Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, 19 December
1994, Series A no. 302.
IRIS 1995-3/7
32
European Court of Human Rights: Case of Prager and Oberschlick vs Austria
Ad van Loon
On 26 April 1995, the European Court of Human Rights held - by five votes to four - that Austria
did not violate Article 10 of the European Convention for the protection of human rights and
fundamental freedoms (freedom of expression) by fining a journalist and a publisher for
publishing a defamatory article.
On 15 March 1987 the periodical Forum published an article by Mr Prager, which contained
criticism of the judges sitting in the Austrian criminal courts, including an attack on Judge "J".
Following an action for defamation brought by judge "J"., Mr Prager and Mr Oberschlick publisher of Forum - were sentenced to pay fines and damages. The Regional Court also ordered
the confiscation of the remaining stocks of the relevant issue of Forum. The Court ruled that the
interference in the applicants' freedom of expression was "prescribed by law" and that the aim
pursued (protection of a reputation and maintenance of the authority of the judiciary) was
legitimate.
Although freedom of expression also applies to offensive information or ideas, the interference
in this case was deemed not to be disproportionate to the legitimate aim pursued, and was
therefore held to have been "necessary in a democratic society". In conclusion, the Court found
that no violation of Article 10 was established.
•
Prager and Oberschlick v. Austria, 26 April 1995, Series A no. 313.
IRIS 1995-6/6
33
European Court of Human Rights: Defamation Award of £1.5m Violates Article 10 of the
European Convention on Human Rights (Freedom of Expression)
Ad van Loon
In its judgment of 13 July 1995, the European Court of Human Rights has held that a defamation
award of £1.5m constituted a violation of Article 10. The Court found that the award, having
regard to its size taken in conjunction with the state of national (UK-) law at the relevant time,
was not 'necessary in a democratic society' and thus was a violation of the applicant's rights
under Article 10. The applicant, count Tolstoy Miloslavsky, wrote in March 1987 a pamplet in
which he accused lord Aldington of war crimes. An English jury awarded lord Aldington £1.5m
in damages, which was approximately three times the largest amount previously awarded by an
English libel jury. Having regard to the size of the award in this case in conjunction with the lack
of adequate and effective safeguards at the relevant time against a disproportionately large
award, the Court found that there had been a violation of the applicant's rights under Article 10
of the Convention.
•
Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, Series A no. 316-B.
IRIS 1995-8/4
34
European Court of Human Rights: The journalist's sources protected by Article 10 of the
European Convention on Human Rights
Dirk Voorhoof
Media Law Section of the Communication Sciences Department, Ghent University, Belgium
In its judgment of 27 March 1996 the Grand Chamber of the European Court of Human Rights
with an 11 to 7 majority came to the conclusion that a disclosure order requiring a British
journalist to reveal the identity of his source and the fine imposed upon him for having refused to
do so, constitutes a violation of the freedom of expression and information as protected by
Article 10 of the European Convention for the protection of human rights and fundamental
freedoms.
In 1990 William Goodwin, a trainee-journalist working for "The Engineer", was found guilty by
the House of Lords of Contempt of Court because he refused to disclose the identity of a person
who previously supplied him with financial information derived from a confidential corporate
plan of a private company. According to the House of Lords, the necessity of obtaining
disclosure lay in the threat of severe damage to the private company which would arise if the
information contained in their corporate plan was disseminated while their refinancing
negotations were still continuing. The disclosure order was estimated to be in conformity with
Section 10 of the Contempt of Court Act of 1981, as the disclosure was held to be necessary in
the interest of justice.
The European Court of Human Rights, however, is of the opinion that the impugned disclosure
order is in breach of Article 10 of the European Convention on Human Rights. Although the
disclosure order and the fine imposed upon Goodwin for having refused to reveal his source are
"prescribed by law" and pursue a legitimate aim ("the protection of the rights of others"), the
interference by the English courts in Goodwin's freedom of expression and information is not
considered as necessary in a democratic society. The majority of the Court, and even the joint
dissenters, firmly underline the principle that "protection of journalistic sources is one of the
basic conditions for press freedom" and that "without such protection, sources may be deterred
from assisting the press in informing the public on matters of public interest". In its judgment the
Court emphasizes that without protection of a journalist's sources "the vital public-watchdog role
of the press may be undermined and the ability of the press to provide accurate and reliable
information may be adversely affected". The Court considers that a disclosure order cannot be
compatible with Article 10 of the Convention unless it is justified by an overriding requirement
in the public interest. As the Court pointed out : "In sum, limitations on the confidentiality of
journalistic sources call for the most careful scrutiny by the Court". The European Court in casu
is of the opinion that the interests of the private company in eliminating, by proceedings against
the source, the (residual) threat of damage through dissemination of the confidential information,
are not sufficient to outweigh the vital public interest in the protection of the applicant
journalist's source.
The judgment of the European Court in the Goodwin case gives important and additional support
in favour of the protection of journalistic sources as reflected already in some national laws and
in international policy instruments on journalistic freedoms (see, for example, the Resolution of
35
the European Parliament on the Confidentiality of Journalists' Sources, OJEC, 14 February 1994,
No C 44: 34 and the Resolution on Journalistic Freedoms and Human Rights, adopted in the
framework of the Council of Europe's Conferrence of ministers responsible for media policies,
held in Prague, 7-8 December 1994 (see: IRIS, 1995-1: 4).
•
Goodwin v. the United Kingdom, 27 March 1996, Reports of Judgments and Decisions 1996II.
IRIS 1996-4/4
36
European Court of Human Rights: Banning of blasphemous video not in breach of
freedom of (artistic) expression
Dirk Voorhoof
On 25 November 1996, the European Court of Human Rights decided in the Wingrove case that
the refusal to grant a distribution certificate in respect of a video work considered blasphemous,
was not in breach of Article 10 of the European Convention of Human Rights (see also the
decision by the European Court of Human Rights in the Case of Otto Preminger vs. Austria of 20
September 1994, Series A vol. 295, IRIS 1995-1: 3).
Nigel Wingrove, a film director residing in London, was refused a certificate by the British
Board of Film Classification, because his videofilm "Visions of Ecstasy" was considered as
blasphemous. The film evocates the erotic fantasies of a sixteenth century Carmelite nun, St
Teresa of Avila, her sexual passions in the film being focused inter alia on the figure of the
crucified Christ. As a result of the Board's determination, Wingrove would have committed an
offence under the Video Recordings Act 1984 if he were to supply the video in any manner,
whether or not for reward. The director's appeal was rejected by the Video Appeals Committee.
Wingrove applied to the European Commission of Human Rights, relying on Article 10 of the
European Convention for the protection of human rights and fundamental freedoms.
Although the Commission in its report of 10 January 1995 (see IRIS 1995-5: 4) expressed the
opinion that there had been a violation of Article 10 of the Convention, the Court comes to the
conclusion, by seven votes to two, that there had been no violation of the applicant's freedom of
(artistic) expression, the British authorities being fully entitled to consider that the impugned
measure was justified as being necessary in a democratic society for the protection of the rights
of others. The Court underlined that whereas there is little scope for restrictions on political
speech or on debate of questions of public interest, a wider margin of appreciation is available to
the national authorities restricting freedom of expression in relation to matters within the sphere
of morals or especially, religion. The Court also took into consideration that the English law on
blasphemy does not prohibit the expression, in any form, of views hostile to the Christian
religion: it is the manner in which these views are advocated which makes them blasphemous.
On the other hand the Court did not find a counter argument in the fact that legislation on
blasphemy exists only in few other European countries and that the application of these laws has
become increasingly rare. Furthermore, the Court had no problem with the fact that the English
law on blasphemy only extends to the Christian faith. Neither did the Court estimate the measure
as disproportionate, although it was recognised that the measures taken by the authorities
amounted to a complete ban of the film's distribution. Such a far-reaching measure involving
prior restraint, was considered as necessary, because otherwise in practice, the film would escape
any form of control by the authorities. The measure in other words had to be far-reaching in
order to be effective. Having viewed the film for itself, the Court is satisfied that the decisions by
the national authorities cannot be considered to be arbitrary or excessive. The Court ultimatily
reached the conclusion that the British authorities did not overstep their margin of appreciation
37
and that the impugned measure against "Visions of Ecstasy" was not a violation of Article 10 of
the Convention.
• Wingrove v. the United Kingdom, 25 November 1996, Reports of Judgments and
Decisions 1996-V.
IRIS 1997-1/8
38
European Court of Human Rights: The right of the press to criticise the courts
Dirk Voorhoof
On 24 February 1997 the European Court of Human Rights delivered its judgment in the case of
two journalists on Humo the weekly publication against Belgium. The case concerned the order
that two journalists pay damages and interest for the defamation of four judges of the Antwerp
Court of Appeal. The applicants had been ordered by the Brussels Court of Appeal to pay the
token sum of one Belgian franc in non-material damages, and to have the judgment published in
the weekly publication Humo and six daily newspapers, at the applicants' expense. The judgment
was upheld by the Court of Cassation. The Belgian courts felt that the journalists were at fault in
attacking the honour and the reputation of the complainant judges by unjustifiable accusations
and offensive insinuations in the disputed articles printed in Humo.
Like the Commission (see IRIS 1996-3:4), the Court felt that interference in the applicants'
freedom of expression was not necessary in a democratic society, as demanded by Article 10,
paragraph 2 of the European Convention on Human Rights. The Court recalled that the press
plays a vital role in a democratic society and that its role, while respecting its duties and
responsibilities, is to communicate information and ideas on all matters of general interest,
including those which concerns the functioning of the judicial authorities. The Court held that,
although the commentaries by the two journalists did indeed contain severe criticism, this was
not out of keeping with the emotion and indignation aroused by the facts alleged in the articles at
issue, in particular concerning incest and the way in which the courts were dealing with it. As
regards the polemic, or indeed aggressive, tone used by the journalists, the Court recalled that,
apart from the substance of the ideas and information expressed, Article 10 also protects their
mode of expression. The Court therefore decided that "journalistic freedom also covers possible
recourse to a degree of exaggeration or even provocation". Lastly, the Court held that the
journalists based their work on extensive research and the opinions of a number of experts, and
that only one passage was unacceptable. In conclusion, and in general, the Court held that, in
view of the gravity of the matter and the questions at stake, the need to interfere in the exercise
of the freedom of expression and information was not demonstrated. Article 10 of the
Convention had therefore been violated (7 votes to 2).
Moreover, the Brussels Court of Appeal had rejected the journalists' application for
communication of the contents of the case documents or to hear at least certain witnesses in
order to assess the justification of the allegations made by the journalists. The Court held that
this "outright rejection had put journalists at a substantial disadvantage vis-à-vis the plaintiffs".
This contravened the principles of equality of arms and therefore Article 6 of the Convention had
also been violated (unanimous decision).
•
De Haes and Gijsels v. Belgium, 24 February 1997, Reports of Judgments and
Decisions 1997-I.
IRIS 1997-3/10
39
European Court of Human Rights: The Freedom of Critical Political Journalism Oberschlick No 2 vs. Austria
Dirk Voorhoof
In its judgement of 1 July 1997 the European Court of Human Rights once more confirmed the
high level of freedom of political speech guaranteed by Article 10 of the European Convention
for the protection of human rights and fundamental freedoms. It is the fourth condemnation of
Austria on this issue (see also ECourtHR, 8 July 1986, Lingens, Series A, Vol. 103; ECourtHR,
23 May 1991, Oberschlick Series A, Vol. 204; ECourtHR, 28 August 1992, Schwabe Series A,
Vol. 242-B).
In October 1990 Jörg Haider, the leader of the Austrian Liberal Party (FPÖ), held a speech in
which he glorified the role of the generation of soldiers in World War II, whatever side they had
been on. Some time later this speech was published in Forum, a political magazine printed in
Vienna. The speech was commented critically by Gerhard Oberschlick, editor of the magazine.
In his commentary, Oberschlick called Haider an `Idiot' (Trottel). On application by Haider,
Oberschlick was found guilty for insult (Beleidigung) by the Austrian courts (Art. 115 Austrian
Penal Code).
Oberschlick appealed to the European Commission of Human Rights, arguing that the decisions
in which he was convicted for having insulted Mr Haider, had infringed his right to freedom of
expression as secured by Article 10 of the European Convention on Human Rights. As the
Commission in its report of 29 November 1995, the Court in its judgment of 1 July 1997 also
comes to the conclusion that the conviction of Oberschlick by the Austrian Courts represented a
disproportionate interference with the exercise of his freedom of (political) expression, an
interference which is "not necessary in a democratic society".
The Court reiterates that freedom of expression is applicable not only to information and ideas
that are favourably received or regarded as inoffensive or as a matter of indifference, but also the
"those that offend, shock or disturb". The limits of acceptable criticism are wider with regard to a
politician acting in his public capacity than in relation to a private individual. The Court takes
into account that Mr Haider clearly intended to be provocative and consequently could expect
strong reactions on his speech. In the Court's view, the applicant's article may certainly be
considered polemical, but it didn't constitute a gratuitous personal attack, as the author provided
an objectively understandable explanation why he considered Haider as an "Idiot". The Court
comes to the conclusion that "it is true that calling a politician a Trottel in public may offend
him. In the instant case, however, the word does not seem disproportionate to the indignation
knowingly aroused by Mr. Haider". By seven votes to two, the Court decided that there is a
breach of Article 10 of the Convention.
• Oberschlick v. Austria (no. 2), 1 July 1997, Reports of Judgments and Decisions
1997-IV.
IRIS 1997-7/4
40
European Court of Human Rights: Restriction on the Freedom of Expression Permitted for
Maintaining the Authority and Impartiality of the Judiciary - Worm vs. Austria
Dirk Voorhoof
In its judgement of 29 August 1997 the European Court of Human Rights has ruled on an
interesting case in the field of media and justice. Mr Alfred Worm, an Austrian journalist writing
for the magazine Profil , was convicted by the Vienna Court of Appeal because of the
publication of an article reporting on a pending trial against the former Minister of Finance, Mr
Androsch. The trial concerned a case of tax evasion. The Court convicted Mr Worm of having
exercised prohibited influence on criminal proceedings and imposed on him a fine of ATS
48,000 or 20 days of imprisonment in default of payment (Section 23 of the Austrian Media
Act). According to the Vienna Court of Appeal there was no doubt that, at least with regard to
the lay judges, the reading of the incriminated article published by Mr Worm was capable of
influencing the outcome of the criminal proceedings against Mr Androsch. Mr Worm applied to
the European Commission of Human Rights complaining that this conviction was in breach of
Article 10 of the European Convention of Human Rights (freedom of expression and
information). In its report of 23 May 1996 the Commission expressed the opinion that indeed
there had been a violation of Article 10 of the Convention.
By a seven to two decision, the Court now reached the conclusion that the conviction of Mr
Alfred Worm was not infringing Article 10 of the European Convention of Human Rights
because this conviction is to be considered fully in accordance with the second paragraph of
Article 10. The conviction as a matter of fact finds a legal basis in Section 23 of the Austrian
Media Act which reads as follows : "Anyone who discusses, subsequent to the indictment (..)
and before the judgement at first instance in criminal proceedings, the probable outcome of those
proceedings or the value of evidence in a way capable of influencing the outcome of the
proceedings shall be punished (..)". The conviction furthermore was aimed at maintaining the
authority and impartiality of the judiciary, which means that it thus pursued a legitimate aim
under the Convention. Finally, the Court comes to the conclusion that in casu the conviction was
also necessary in a democratic society. Although the Court recognises that the States are not
entitled to restrict all forms of public discussion on matters pending before the courts, it
emphasises that every person, - including a public figure such as Mr Androsch -, is entitled to the
enjoyment of the guarantees of a fair trial set out in Article 6 of the European Convention.
According to the Court this means that journalists, when commenting on pending criminal
proceedings, may not publish statements which are likely to prejudice, whether intentionally or
not, the chances of a person receiving a fair trial. The Court also states that it is the public
prosecutor's role and not that of the journalist, to establish one's guilt. The Court paraphrases its
judgement in the Sunday Times (No 1) case (26 April 1979, Series A vol. 30) by considering that
it cannot be excluded that the public is becoming accustomed to the regular spectacle of
pseudotrials in the news media which might in the long run have nefarious consequences for the
acceptance of the courts as the proper forum for the determination of a person's guilt or
innocence on a criminal charge. Against this background the European Court agreed with the
41
Vienna Court of Appeal that the interference in the applicant's right to freedom of expression
was justified and subsequently the Court decided that there was no breach of Article 10.
•
Worm v. Austria, 29 August 1997, Reports of Judgments and Decisions 1997-V
IRIS 1997-8/6
42
European Court of Human Rights: Case Radio ABC vs. Austria
Dirk Voorhoof
Radio ABC (Alternative Broadcasting Corporation) in 1989 was refused a licence to set up a
private local radio station for the Vienna region. After exhausting all national remedies, Radio
ABC applied to the European Commission of Human Rights in 1991, relying on Article 10 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms. The
Commission, in its report of 11 April 1996, considered unanimously that the refusal to grant a
licence for private broadcasting was in breach of Article 10 of the Convention. The Court now in
its judgement of 20 October 1997 comes to the same conclusion. The Court refers to its
judgement in the Case of Informationsverein Lentia vs. Austria (ECourtHR, 24 November 1993,
Series A, vol. 276), in which it decided that the restriction on the freedom to impart information
by prohibiting private broadcasting, as this was based on the Austrian Broadcasting monopoly,
was not necessary in a democratic society and hence was in breach of Article 10, par. 2 of the
Convention. As in the period before the entry into force of the Regional Broadcasting Act (1
January 1994) there was no legal basis whereby an operating licence for a local radio station
could be granted because of the broadcasting monopoly guaranteed to the ORF, the situation of
Radio ABC was identical to that of the applicants in the Informationsverein Lentia case.
Accordingly for this period it was undisputed that there was a breach of Article 10. But even in
the next period, after the coming into force of the Regional Broadcasting Act in 1994, there was
still a breach of Article 10 of the European Convention, because of the fact that the
Constitutional Court in its judgement of 27 September 1995 annulled some provisions of the
Regional Broadcasting Act, which led to the legal situation which existed before 1994, so that
the violation of Article 10 was prolonged.
The Austrian Government at the hearing of 27 May 1997 however informed the Court of the
amended version of the Regional Broadcasting Act of 1 May 1997, according to which new
licence applications could be lodged in the period between 1 May and 12 June 1997. Although
the European Court doesn't rule in abstracto whether legislation is compatible or not with the
Convention, the Court nevertheless "notes with satisfaction that Austria has introduced
legislation to ensure the fulfilment of its obligations under Article 10" of the European
Convention. The Austrian Broadcasting Law opening access for private broadcasting finally
seems to be in accordance with the freedom of expression and information as guaranteed by
Article 10 of the European Convention on Human Rights (see also ECourtHR, 9 June 1997,
Telesystem Tirol Kabeltelevision vs. Austria, see IRIS 1997-7: 4).
• Radio ABC v. Austria, 20 October 1997, Reports of Judgments and Decisions
1997-VI.
IRIS 1997-10/3
43
European Court of Human Rights: Four Recent Judgments on the Freedom of Expression
and Information
Dirk Voorhoof
1. Zana vs. Turkey, 25 November 1997 In this case the European Court of Human Rights comes
to the conclusion that there was no breach of Article 10 of the European Convention for the
protection of human rights and fundamental freedoms. Zana was convicted to several months of
imprisonment in Turkey because of the publication of an interview in the newspaper
Cumhuriyet, in which he said to support the PKK movement, although he disagreed with the
massacres. And he added to this statement : "Anyone can make mistakes, and the PKK kill
women and children by mistake...".
According to the Court this statement is both contradictory and ambiguous, because it is difficult
simultaneously to support the PKK, "a terrorist organisation which resorts to violence to achieve
its ends", and to declare oneself opposed to massacres. The Court notes that the interview
coincided with murderous attacks carried out by the PKK on civilians in south-east Turkey at the
material time and that the publication of the interview had to be regarded as likely to exacerbate
an already explosive situation in the region. The Court accordingly considers that the penalty
imposed on Zana could reasonably be regarded as answering a "pressing social need" and hence
as necessary in a democratic society. So there is no breach of Article 10 of the Convention.
2. Grigoriades vs. Greece, 25 November 1997 This case concerns the conviction of a lieutenant
of the crime of insult to the army, insult which was contained in a letter the applicant sent to his
unit's commanding officer. A sentence of three months was imposed on Grigoriades. According
to the Court, Article 10 of the Convention which guarantees the freedom of expression and
information, applies to military personnel as to all other persons within the jurisdiction of a
Contracting State. The Court notes that the contents of the letter indeed included certain strong
and intemperate remarks concerning the armed forces in Greece, but those remarks were made in
the context of a general and lenghty discourse critical of army life and the army as an institution.
Nor did the letter contain any insults directed against the recipient of the letter or any other
person. The Court decides that the letter had no objective impact on military discipline and that
the prosecution and conviction of Grigoriades cannot be justified as necessary in a democratic
society. The Court comes to the conclusion that in this case Article 10 is violated by the Greek
authorities.
3. Guerra vs. Italy, 19 February 1998 In this case a group of inhabitants of Manfredonia
complained of the fact that they had not received proper information from the authorities on the
hazards of the industrial activity of a local chemical factory. Nor were they informed on the
safety plans or emergency procedures in the event of an accident. The Court finds no infringment
of Article 10 of the Convention. The Court argues that this article on the freedom of expression
and information "basically prohibits a government from restricting a person from receiving
information that others wish or may be willing to impart to him. That freedom cannot be
construed as imposing on a State, in circumstances such as those of the present case, positive
obligations to collect and disseminate information of its own motion". Hence, no violation of
44
Article 10. However the Court is of the opinion that the Italian authorities, by not giving essential
information to the population involved, did not take the necessary steps to ensure effective
protection of the applicants' right to respect for their private and family life and consequently
violated Article 8 of the Convention.
4. Bowman vs. United Kingdom, 19 February 1998 (see IRIS 1998-3: 3) Mrs Bowman was
prosecuted in the UK following the distribution of leaflets in election time. As the executive
director of the Society for the Protection of the Unborn Child, Mrs Bowman campaigned against
abortion. The leaflets contained information on the opinions of candidates standing for the
general elections with regard to abortion. Mrs Bowman was charged with an offence under the
Representation of the People Act 1983 which prohibits expenditure of more than five pounds
sterling by an unauthorised person during the period before an election on conveying information
to electors with a view to promoting of procuring the election of a candidate. Although Mrs
Bowman at earlier occasions had been convicted for similar facts, this time she finally was
acquitted by the Court. Nevertheless the European Court of Human Rights is of the opinion that
the prosecution in itself can be regarded as an interference by the authorities in the applicants
right of freedom of expression. The Court finds that the restrictive rule with regard to the
distribution of leaflets in election time has the effect of a total barrier to Mrs Bowman's
publishing information with a view to influencing the voters in favour of an anti-abortion
candidate. At the same time there were no restrictions placed upon the freedom of the press to
support or oppose the election of any particular candidate. The Court concludes that the
restriction in question is disproportionate to the aim pursued ("securing equality between
candidates") and hence violates Article 10 of the Convention.
•
•
•
•
Zana v. Turkey, 25 November 1997, Reports of Judgments and Decisions 1997-VII.
Grigoriades v. Greece, 25 November 1997, Reports of Judgments and Decisions
1997-VII.
Guerra and Others v. Italy, 19 February 1998, Reports of Judgments and Decisions
1998-I.
Bowman v. the United Kingdom, 19 February 1998, Reports of Judgments and
Decisions 1998-I.
IRIS 1998-4/1
45
European Court of Human Rights: two recent judgements on the freedom of expression
and information
Dirk Voorhoof
1. Schöpfer vs. Switzerland, 20 May 1998.
Conviction of a lawyer who criticised the local administration of justice at a press conference: no
breach of Article 10 of the European Convention for the protection of human rights and
fundamental freedoms. In 1992, Mr. Schoepfer, a lawyer and former politician, held a press
conference in Lucerne at which he declared that in his local district human rights were flagrantly
disregarded. More specifically, he complained about the pretrial detention of one of his clients.
According to Mr. Schoepfer his client was detained without an arrest warrant. Mr. Schoepfer
demanded the immediate resignation of the prefect and the district clerks. He pointed out that he
was addressing the press as a last resort.
Shortly thereafter the Lucerne Bar's Supervisory Board started disciplinary proceedings against
Mr. Schoepfer on the ground that his statements at the press conference breached his
professional ethics as a lawyer. The Supervisory Board was of the opinion that the tone used by
Mr. Schoepfer in his criticism was unacceptable and that he had made allegations which were
untrue. Mr. Schoepfer was fined 500 Swiss francs. An appeal against this decision was dismissed
by the Federal Court.
Mr. Schoepfer appealed to the European Commission of Human Rights alleging that the
disciplinary penalty imposed on him constituted a breach of Article 10 of the Convention.
Similar to the European Commission in its report of 9 April 1997, the European Court of Human
Rights (ECHR) has now come to the conclusion that there has been no violation of Article 10 of
the Convention.
With regard to the question whether the infringement of the applicant's right of freedom of
expression was necessary in a democratic society in order to maintain the authority and
impartiality of the judiciary, the Court reiterates that the special status of lawyers gives them a
central position in the administration of justice as intermediaries between the public and the
courts and that the courts as guarantors of justice must enjoy public confidence. Considering the
key role of lawyers in this field, the ECHR found it legitimate to expect lawyers to contribute to
the proper administration of justice, and thus to maintain public confidence therein. The ECHR
notes that Mr. Schoepfer first publicly criticised the administration of justice and only afterwards
exercised a legal remedy which proved effective with regard to the complaint in question.
Recognising that the freedom of expression also extends to lawyers, who are certainly entitled to
comment in public on the administration of justice, the ECHR, at the same time, emphasised that
criticism must not overstep certain bounds. The right balance needs to be struck between the
various interests involved, which include the public's right to receive information about questions
arising from judicial decisions, the requirements of the proper administration of justice and the
dignity of the legal profession. The Court concurred with the findings of the Bar Supervisory
Board because it is better positioned than an international court to determine how, at a given
46
time, the right balance can be struck in this context. Having regard also to the modest amount of
the fine imposed on the applicant, the ECHR comes to the conclusion that there is no breach of
Article 10 (seven votes to two).
2. Incal vs. Turkey, 9 June 1998.
Conviction for contributing to the preparation of a leaflet criticising the Government and
supporting political action by the Kurdish population, is estimated a breach of Article 10 of the
Convention. In 1992 Mr. Incal, a lawyer by profession but at the material time a member of the
Izmir section of the People's Labour Party (HEP), was responsible for the editing of a leaflet
criticising the local authorities for their campaign against the Kurdish population. Permission
was asked to the Izmir prefecture in order to distribute the leaflet, but this was rejected because
the leaflet was considered to contain separatist propaganda capable of inciting the people to resist
the Government and commit criminal offences. Upon request of the public prosecutor's office,
the National Security Court issued an injunction ordering the seizure of the leaflets and
prohibiting their distribution. Criminal proceedings were started against Mr. Incal, who was
sentenced by the Izmir Security Court to nearly seven months imprisonment and a fine, while the
conviction also debarred Mr. Incal from the civil service and prevented him from participating in
a number of political or social activities.
Mr. Incal turned to the European Commission. In its report of 25 February 1997 the Commission
came to the conclusion that Article 10 was violated, as was Article 6 (right to a fair trial). The
ECHR has now come to the same conclusion.
The Court reiterates its case law with regard to the essential role of the freedom of expression in
a democratic society and emphasises the importance of this freedom particularly for political
parties and their active members (see also ECHR, 30 January 1998, United Communist Party of
Turkey and Others vs. Turkey). It is also underlined that the limits of permissible criticism are
wider with regard to the Government than in relation to a private citizen, or even a politician. In
a democratic system the actions and omissions of the Government must be subject to the close
scrutiny not only of the legislative and judicial authorities but also of public opinion. The Court
notes that the leaflet as a matter of fact contained virulent remarks about the policy of the
Turkish Government and urged the population of Kurdish origin to band together to raise
political demands and to organise "neighbourhood committees". According to the Court these
appeals cannot, however, be taken as an incitement to violence, hostility or hatred between
citizens. The Court also notes the radical nature of the interference by the Turkish police and by
the judicial authorities and especially its preventive character. Referring to the problems linked
to the prevention of terrorism in the region, the Court observes that the circumstances of the
present case are not comparable to those found in the Zana case (see IRIS 1998-4: 3) and that
Mr. Incal could not be held responsible in any way for the problems of terrorism in the Izmir
region. The Court unanimously came to the conclusion that Mr. Incal's conviction was
unnecessary in a democratic society and hence violated Article 10 of the Convention.
It is to be underlined that the Court also found a violation of Article 6 of the Convention because
Mr. Incal as a civilian had to appear before a court partly composed of members of the armed
forces. The Court comes to the conclusion that the applicant had legitimate cause to doubt the
47
independence and impartiality of the Izmir National Security Court. This accordingly means a
breach of Article 6, par. 1 of the Convention which inter alia guarantees a fair and public hearing
by an independent and impartial tribunal in criminal cases.
•
•
Schöpfer v. Switzerland, 20 May 1998, Reports of Judgments and Decisions 1998-III.
Incal v. Turkey, 9 June 1998, Reports of Judgments and Decisions 1998-IV.
IRIS 1998-7/3
48
European Court of Human Rights: One Recent Judgement on the Freedom of Expression
and Information
Dirk Voorhoof
Ahmed and others v. United Kingdom, 2 September 1998: Restrictions on the Political Activities
by Local Government Officials
This case concerns the application of the Local Government and Housing Act 1989 and the
Local Government Officers (Political Restrictions) Regulations 1990 according to which certain
categories of (senior) local government officials are prohibited from taking part in certain kinds
of political activities. Four local government officials and a trade union representing public
sector workers applied to the European http://services.obs.coe.int/en/index.htm Commission
alleging that the application of this legislationinfringed, inter alia, their right to freedom of
expression as guaranteed by Article 10 of the Convention. The European Court recognises that
the guarantees contained in Article 10 of the Convention extend also to civil servants and that the
effects of the legislation under dispute in various ways restricted the right of freedom of
expression and the right to impart information and ideas to third parties in the political context.
However, according to the Court this interference does not give rise to a breach of Article 10 of
the Convention, because these restrictions are to be regarded as necessary in a democratic society
(six votes to three). Referring also to the margin of appreciation, the Court notes that the
measures were directed at the need to preserve the impartiality of carefully defined categories of
officers whose duties involve the provision of advice to a local authority council or to its
operational committees or who represent the council in dealings with the media. Hence the
restrictions imposed can reasonably constitute a justifiable response to the maintenance of the
impartiality of the local government officers and are likely to avoid a situation where in the eyes
of the public the local government officers are linked with a particular party political line. The
Court also came to the conclusion that there was no breach of Article 11 of the Convention
(freedom of assembly), nor of Article 3 of Protocol No. 1 to the Convention (the right to fully
participate in the electoral process).
•
Ahmed and Others v. the United Kingdom, 2 September 1998, Reports of Judgments
and Decisions 1998-VI.
IRIS 1998-9/3
49
European Court of Human Rights: Three Recent Judgments on the Freedom of Expression
and Information
Dirk Voorhoof
1. Hertel vs. Switzerland, 25 August 1998: the freedom of expression also extends to the
criticising of certain economic goods, in casu microwave ovens.
In 1992 in an article in the quarterly Journal Franz Weber referred a research paper of Mr. Hertel
on the effects on human beings of the consumption of food prepared in microwave ovens.
According to the journal the research findings of Mr. Hertel scientifically proved the
(carcinogenic) danger of microwave ovens. In an editorial by Mr. Weber it was argued that
microwave ovens should be banned. Some extracts of the research paper were also published.
The Swiss Association of Manufacturers and Suppliers of Household Electrical Appliances
started up proceedings against the editor of the journal and against Mr. Hertel under application
of the Federal Unfair Competition Act (Section 3). While the application against the editor of the
Journal was dismissed, in the case against Mr. Hertel the Berne Commercial Court allowed the
application because the defendant had used unnecessarily wounding statements. Mr. Hertel was
prohibited by the Court from stating that food prepared in microwave ovens was a danger to
health and from using in publications and public speeches on microwave ovens the image of
death. The imposed injunction was later confirmed by the Federal Court. Mr. Hertel applied to
the European Commission for Human Rights, complaining especially of a violation of Article 10
of the European Convention of Human Rights. Just like the Commission in its report of 9 April
1997, the European Court comes to the conclusion that Mr. Hertel's freedom of expression was
violated by this ban imposed on him by the Swiss Courts. Although the interference in the
applicant's freedom of expression was prescribed by law and had a legitimate aim ("the
protection of the rights of others"), the Court is of the opinion that the impugned measure was
not necessary in a democratic society. The Court notes that there is a disparity between the
measure and the behaviour it was intended to rectify. According to the Court "the effect of the
injunction was partly to censor the applicant's work and substantially to reduce his ability to put
forward in public views which have their place in a public debate whose existence cannot be
denied". And the Court emphasised : "It matters little that this opinion is a minority one and may
appear to be devoid of merit since, in a sphere in which it is unlikely that any certainty exists, it
would be particularly unreasonable to restrict freedom of expression only to generally accepted
ideas" (par. 50). By six votes to three the Court reached the conclusion that Article 10 of the
European Convention was violated.
2. Lehideux and Isorni vs. France, 23 September 1998: a conviction because of an advertisement
presenting in a positive light certain acts of Marshal Pétain is considered a violation of the right
of freedom of expression.
On 13 July 1984 the newspaper Le Monde published a one-page advertisement bearing the title
"People of France, you have short memories". The text presented Philippe Pétain, first as a
soldier and later as French head of State under the Vichy Government, in a positive light. After a
complaint by the National Association of Former Members of the Resistance a criminal
50
procedure was started against Mr. Lehideux as the president of the Association for the Defence
of the Memory of Marshal Pétain and against Mr. Isorni as the author of the text. The
advertisement finally was estimated a public defence of the crimes of collaboration with the
enemy, under application of section 23-24 of the Freedom of the Press Act of 29 July 1881 (Paris
Court of Appeal 26 January 1990). The civil parties were awarded damages of one franc and
publication of excerpts from the judgment in Le Monde was ordered. The Court of Cassation in
its judgment of 16 November 1993 was of the opinion that this conviction did not infringe the
right to freedom of expression protected by Article 10 of the European Convention.
The European Court in Strasbourg, sitting in Grand Chamber (21 judges), has now reached a
different conclusion. Although the interference in the applicants' right to freedom of expression
was prescribed by law and pursued the protection of the reputation or rights of others and the
prevention of disorder or crime, the criminal conviction of Lehideux and Isorni was not
estimated as "necessary in a democratic society". Although the Court recognises that the litigious
advertisement presented Pétain in an entirely favourable light and did not mention any of the
offences for which he was sentenced to death by the High Court of Justice in 1945, the Court
also underlines that the text explicitly contains a disapproval of "Nazi atrocities and
persecutions" and of "German omnipotence and barbarism". Although the Court estimates the
omissions in the advertisement of any reference to the responsibility of Pétain for the persecution
and deportation to the death camps of tens of thousands of Jews "morally reprehensible", it
evaluates the advertisement as a whole in the light of a number of circumstances of the case.
Referring to the different decisions and judgments during the domestic proceedings, to the fact
that the events in issue occurred more than forty years ago and to the circumstance that the
publication in issue corresponds directly to the object of the associations which produced it
without any other proceedings have ever been brought against them for pursuing their object, the
Court reaches the conclusion that the impugned interference in the applicants' rights violates
Article 10. The Court also refers to the seriousness of a criminal conviction for publicly
defending the crimes of collaboration, having regard to the existence of other means of
intervention and rebuttal, particularly through civil remedies. Taking all this into consideration,
the Court reaches the conclusion that the criminal conviction of the applicants was
disproportionate and as such unnecessary in a democratic society. Therefore, the conviction of
Lehideux and Isorni has been a breach of Article 10 (fifteen votes to six). Having reached this
conclusion, the Court does not consider it appropriate to rule on the application of Article 17of
the Convention (prohibition of abuse of rights).
3. Steel and others vs. United Kingdom, 23 September 1998: the arrest and detention of
protesters for breach of the peace and the freedom of expression.
The judgment of the European Court in the case Steel and others concerns 3 different cases with
an analogue issue: the interference by the British authorities against protest and demonstrations
by ecological or peace movement activists. In all 3 cases the applicants were arrested and kept in
custody some time for reason of "breach of peace". The first applicant, Ms. Steel, took part in a
protest against a grouse shoot. She walked in front of a hunter's shotgun, preventing him from
firing. The second applicant, Ms. Lush, took part in a protest against the building of an extension
to a motorway. Three other applicants had taken part in a protest against the sale of military
51
helicopters : their protest took the form of the distribution of leaflets and holding up banners in
front of a conference centre. The Court recognises that although the protest by the first and
second applicant took the form of physically impeding the activities of which the applicants
disapproved, this behaviour could be considered as the expression of an opinion within the
meaning of Article 10. With regard to both cases the Court is of the opinion however that the
detention and the imprisonment was to be considered as "necessary in democratic society" for
the interest in maintaining public order, the rule of law and the authority of the judiciary. With
regard to the detention of the protesters against the military helicopters, the Court is of the
opinion that this interference was not "prescribed by law", since the peaceful distribution of
leaflets could not be considered as a breach of the peace. The Court does not find any indication
that the applicants significantly obstructed or attempted to obstruct the conference taking place
or that they took any other action likely to provoke others to violence. Additionally, the Court
considered the interference in the applicants' right of freedom of expression as disproportionate
to the aims of preventing disorder or protecting the rights of others. Unanimously the Court
reached the conclusion that in this case there has been a violation of Article 10, just as there was
a violation of Article 5, par. 1 of the Convention (right to liberty and security).
•
•
•
Hertel v. Switzerland, 25 August 1998, Reports of Judgments and Decisions 1998-VI.
Lehideux and Isorni v. France, 23 September 1998, Reports of Judgments and
Decisions 1998-VII.
Steel and Others v. the United Kingdom, 23 September 1998, Reports of Judgments
and Decisions 1998-VII.
IRIS 1998-10/3
52
European Court of Human Rights: First Judgments on Freedom of Expression and
Information after Reorganisation of the Court
Dirk Voorhoof
1. Fressoz and Roire v. France: the right of journalists to receive and publish confidential
documents under the protection of Article 10 of the European Convention on Human Rights.
In its first judgment after the reorganisation of the European Court of Human Rights in
Strasbourg (1 November 1998, Protocol No. 11), the Court decided in favour of the protection of
journalists and emphasised the importance of the freedom of the press and its vital role in a
democratic society. The case concerns important aspects regarding the limits of journalistic
freedom in reporting on matters of general interest. The applicants were both convicted in France
for the publication of an article in the satirical newspaper Le Canard enchaîné. The article and
the documents it contained showed that the managing director of Peugeot had received large pay
increases while at the same time the management refused the demands of the workers at Peugeot
for a pay rise. Mr. Fressoz, the publication director of the magazine at that time, and Mr. Roire,
the journalist who wrote the article, were convicted for receiving and publishing photocopies that
had been obtained through a breach of professional confidence by an unidentified tax official.
They both claimed that these convictions violate their freedom of expression as protected by
Article 10 of the European Convention. The Court emphasised that in principle journalists cannot
be released from their duty to obey ordinary criminal law on the grounds that Article 10 affords
them protection of freedom of expression. However, in particular circumstances the interest of
the public to be informed and the vital role of the press may justify the publication of documents
that fall under an obligation of professional secrecy.
Taking into consideration the fact that the article contributed to a public debate on a matter of
general interest, that the information on the salary of Mr. Calvet as head of a major industrial
company did not concern his private life, and that the information was already known to a large
number of people, the Court was of the opinion that there was no overriding requirement for the
information to be protected as confidential. It was true that the conviction was based on the
publication of documents of which the divulgation was prohibited, but the information they
contained was not confidential. The Court emphasised that in essence Article 10 of the
Convention "leaves it for journalists to decide whether or not it is necessary to reproduce such
documents to ensure credibility. It protects journalists' rights to divulge information on issues of
general interest provided that they are acting in good faith and on an accurate factual basis and
provide 'reliable and precise' information in accordance with the ethics of journalism" (par. 54).
In the Court's view the publication of the tax assessments was relevant not only to the subject
matter but also to the credibility of the information supplied, while at the same time the journalist
had acted in accordance with the standards governing his profession as a journalist.
The final and unanimous conclusion of the Court, sitting in Grand Chamber, as that there was no
reasonable relationship of proportionality between the legitimate aim pursued by the journalist's
conviction and the means deployed to achieve that aim, given the interest a democratic society
had in ensuring and preserving freedom of the press. The Court decided that there had been
53
violated Article 10 of the Convention and awarded the applicants FRF 60.000 for costs and
expenses.
2. Janowski vs. Poland: insulting civil servants acting in their official capacity is not allowed.
Mr. Janowski, a journalist, was convicted because he insulted two municipal guards. He
offended the guards by calling them "oafs" and "dumb" during an incident which took place in a
square, witnessed by several bystanders. Mr. Janowksi argued before the European Court that his
conviction violated his right of freedom of expression as protected by Article 10 of the
Convention. In evaluating whether the interference in the applicant's right was necessary in a
democratic society, the Court emphasised that civil servants must enjoy public confidence in
conditions free of undue perturbation if they are to be successful in performing their tasks, and it
may therefore prove necessary to protect them from offensive and abusive verbal attacks when
on duty. According to the Court the applicant's remarks did not form part of an open discussion
of matters of public concern and neither did they involve the issue of freedom of the press since
the applicant, although a journalist by profession, was clearly acting as a private individual on
this occasion. Not being persuaded that the applicant's conviction was to be considered as an
attempt by the authorities to restore censorship and discouragement of the expression of criticism
in the future, the Court decided by twelve votes to five that there had been no breach of Article
10 of the Convention.
•
•
Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999-I.
Janowski v. Poland [GC], no. 25716/94, ECHR 1999-I.
IRIS 1999-2/4
54
European Court of Human Rights: Two Recent Judgements on the Freedom of Expression
and Information
Dirk Voorhoof
1. Bladet Tromso and Stensaas v. Norway: defamatory allegations, the publication of a secret
document and article 10 of the European Convention for the Protection of Human Rights In
1992, the newspaper company Bladet Tromso and its editor, Pal Stensaas, were convicted by a
Norway District Court for defamation. The newspaper had published several articles on seal
hunting as well as an official - but secret - report that referred to a series of violations of the sealhunting regulations (the Lindberg report). The article and the report more specifically made
allegations against five crew members of the seal-hunting vessel M/S Harmoni who were held
responsible for using illegal methods of killing seals. Although the names of the persons
concerned were deleted, the crew members of the M/S Harmoni brought defamation proceedings
against the newspaper and its editor. The District Court was of the opinion that some of the
contested statements in the article and the report as a matter of fact were "null and void", and the
newspaper and its editor were ordered to pay damages to the plaintiffs.
The European Court of Human Rights, however, reached the conclusion that the conviction by
the Norwegian district court was in breach of Article 10 of the European Convention. The Court
took account of the overall background against which the statements in question had been made,
notably the controversy that seal hunting represented at the time in Norway and the public
interest in these matters. The Court also underlined that the manner of reporting in question
should not be considered solely by reference to the disputed articles but in the wider context of
the newspaper's coverage of the seal hunting issue. According to the Court "the impugned
articles were part of an ongoing debate of evident concern to the local, national and international
public, in which the views of a wide selection of interested actors were reported". The Court
emphasized that Article 10 of the Convention does not guarantee an unrestricted freedom of
expression even with respect to media coverage of matters of public concern, as the crew
members can rely on their right to protection of their honour and reputation or their right to be
presumed innocent of any criminal offence until proven guilty. According to the Court some
allegations in the newspaper's articles were relatively serious, but the potential adverse effect of
the impugned statements on each individual seal hunter's reputation or rights was significantly
attenuated by several factors. In particular, the Court was of the opinion that "the criticism was
not an attack against all the crew members or any specific crew member". On the other hand, the
Court underlined that the press should normally be entitled, when contributing to public debate
on matters of legitimate concern, to rely on the contents of official reports without having to
undertake independent research, because otherwise, the "vital public-watchdog role" of the press
might be undermined. The Court reached the following conclusion: "Having regard to the
various factors limiting the likely harm to the individual seal hunter's reputation and to the
situation as it presented itself to Bladet Tromso at the relevant time, the Court considers that the
paper could reasonably rely on the official Lindberg report, without being required to carry out
its own research into the accuracy of the facts reported. It sees no reason to doubt that the
newspaper acted in good faith in this respect.". It should be mentioned that 4 of the 17 judges
dissented manifestly with the majority. In the dissenting opinions, annexed to the judgement, it is
55
argued why the articles are to be considered as defamatory towards private individuals.
According to the minority, the Court had not given sufficient weight to the reputation of the seal
hunters. The minority opinion also disagrees with the publication of the secret report and the fact
that the newspapers took the allegations formulated in the report for granted: "How could it have
been "reasonable" to rely on this report when the newspaper was fully aware that the Ministry
had ordered that the report not be made public immediately because it had contained possibly
libellous comments concerning private individuals?". In an unusually sharp conclusion, the
minority held that the Court sends the wrong signal to the press in Europe and that the judgement
undermines respect for the ethical principles which the media voluntarily adhere to. Their final
conclusion was: "Article 10 may protect the right for the press to exaggerate and provoke but not
to trample over the reputation of private individuals".
However, let there be no misunderstanding: the judgement of 20 May 1999 in the case of Bladet
Tromso v. Norway has far reaching implications for the interpretation of the balance between
journalistic freedom and the protection of the rights or reputation of individuals. It is obvious that
a clear majority of the Court argues in favour of the public watchdog-function of the media and
the critical reporting of matters of public concern. And albeit that this freedom is not wholly
unrestricted, according to the actual jurisprudence of the Court, the freedom with respect to press
coverage of matters of serious public concern is very wide.
2. Rekvényi v. Hungary: politics, police and freedom of expression
This case concerns the constitutional ban in Hungary on political activities by police officers and
members of the armed forces. According to Mr. Rekvényi, a police officer living in Budapest,
the ban not only violates his freedom of assembly and association (article 11), but also his
freedom of (political) expression (article 10). Although the Court agreed that the curtailing of the
applicant's involvement in political activities interfered with the exercise of his right of freedom
of expression, the Court was of the opinion that this interference is in accordance with the second
paragraph of article 10. As a matter of fact, the Court held that the interference is prescribed by
law, has a legitimate aim (the protection of national security and public safety and the prevention
of disorder) and is necessary in a democratic society. The Court recognized that it is a legitimate
aim in any democratic society to have a politically neutral police force. On the other hand, the
Court stated that the ban on political activities by policemen is not an absolute one and that in
fact police officers remain entitled to undertake some activities enabling them to articulate their
political opinions and preferences, e.g., policemen may promote candidates, participate in
peaceful assemblies, make statements to the press, appear on radio and television or publish
works on politics. The Court unanimously reached the conclusion that there had been no
violation of article 10 or of article 11 of the Convention.
•
•
Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999-III.
Rekvényi v. Hungary [GC], no. 25390/94, ECHR 1999-III.
IRIS 1999-6/2
56
European Court of Human Rights: Thirteen Judgments on Freedom of Expression and
Information (8 July 1999)
Dirk Voorhoof
On 8 July 1999 the European Court of Human Rights delivered judgments in thirteen cases
against Turkey involving Article 10 of the Convention. In eleven of the thirteen cases the Court
held that there was a violation of the freedom of expression as guaranteed by Article 10 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms. All the
cases concerned various criminal convictions of the applicants arising from separatist
propaganda against the Turkish nation and the territorial integrity of the State or (pro-Kurdish)
propaganda against the indivisibility of the State contrary to the Prevention of Terrorism Act
1991. In all of the cases the European Court reiterated the fundamental principles underlying its
former judgments relating to Article 10, according to which freedom of expression constitutes
one of the essential foundations of a democratic society (see also IRIS 1999-6: 3, IRIS 1999-2: 4,
IRIS 1998-10: 4, IRIS 1998-9:3, IRIS 1998-7: 4, IRIS 1998-4:3). The Court emphasised once
again that Article 10 of the Convention also protects information and ideas that "offend, shock or
disturb" and recalled that there is little scope under Article 10 of the Convention for restrictions
on political speech or on debate on questions of public interest. At the same time, the limits of
permissible criticism are wider with regard to the government than in relation to a private citizen:
in a democratic society the actions or omissions of the government must be subject to the close
scrutiny of public opinion. According to the Court, the dominant position which the government
occupies makes it necessary for it to display restraint in resorting to criminal proceedings,
particularly where other means are available for replying to the unjustified attacks and criticisms
of its adversaries. It is incumbent on the press to impart information and ideas on political issues,
including divisive ones and the public has also a right to receive such information and ideas. On
the other hand, the Court recognised the competence of state authorities to take measures to
guarantee public order and hence to interfere with freedom of expression in cases of incitement
to violence against individuals, public officials or a sector of the population. It was also
emphasized that the duties and responsibilities which accompany the exercise of the right of
freedom of expression by media professionals assume special significance in situations of
conflict and tension and that particular caution is required when the views of representatives or
organisations which resort to violence against the State are published. Such interviews involve a
risk that the media might become a vehicle for the dissemination of hate speech and the
promotion of violence.
After a thorough examination of the wording and the content of the publications concerned, and
after considering the context of the political and the security situation in south-east Turkey, the
Court in eleven of the cases came to the conclusion that the conviction and sentencing of the
applicants was not necessary in a democratic society and that accordingly there had been a
violation of Article 10 of the Convention. In all of these cases the Court was of the opinion that
the impugned articles, news reporting, books or speeches could not be said to incite to violence.
In most cases, the Court was also struck by the severity of the sanctions imposed (20 months
imprisonment, substantial fines, seizures of books...): the nature and severity of the penalties
were also factors which lead to the conclusion that the interferences were disproportionate. The
57
Court also underlined that some of these convictions and sentences were capable of discouraging
the contribution of the press to open discussion on matters of public concern.
In most of the cases the Court also found a violation of Article 6 of the Convention. The
applicants had been denied the right to have their cases heard before an independent and
impartial tribunal as they had been tried by the National Security Courts, in which one member
of the bench of three judges was a military judge. In two cases the Court found no violation of
Article 10 of the Convention. The Court was of the opinion that the impugned letters and the
news commentary in a weekly review must be regarded as capable of inciting to further violence
in the region. Hence, the conviction of the applicant in these two cases (Sürek n°1 and n°3) could
be regarded as answering a "pressing social need". The Court was of the opinion that what was at
issue in these cases was "hate speech and the glorification of violence" and "incitement to
violence". The two judgments that found no violation of Article 10 are also important from
another point of view. It must be underlined that Sürek was convicted while he was the
owner/publisher of the weekly review in which the readers' letters and the news commentary
were published. Although he did not write the articles personally and only had a commercial and
not an editorial relationship with the review, this could not exonerate him from criminal liability.
Sürek was the owner and "as such he had the power to shape the editorial direction of the
review", according to the Court, who held "that for that reason, he was vicariously subject to the
"duties and responsibilities" which the review's editorial and journalistic staff undertake in the
collection and dissemination of information to the public and which assume an even greater
importance in situations of conflict and tension". The general importance of the judgments of 8
July 1999 lies in the fact that the Court again strongly emphasised the relation between freedom
of expression, democracy and pluralism. In other case law of the Court it was underlined "that
one of the principal characteristics of democracy is the possibility it offers of resolving a
country's problems through dialogue, without recourse to violence, even when they are irksome.
Democracy thrives on freedom of expression".
Judgements
• Arslan v. Turkey [GC], no. 23462/94, 8 July 1999.
• Polat v. Turkey [GC], no. 23500/94, 8 July 1999.
• Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, ECHR 1999-IV.
• Karataş v. Turkey [GC], no. 23168/94, ECHR 1999-IV.
• Erdoğdu and İnce v. Turkey [GC], nos. 25067/94 and 25068/94, ECHR 1999-IV.
• Ceylan v. Turkey [GC], no. 23556/94, ECHR 1999-IV.
• Okçuoğlu v. Turkey [GC], no. 24246/94, 8 July 1999.
• Gerger v. Turkey [GC], no. 24919/94, 8 July 1999.
• Sürek and Özdemir v. Turkey [GC], nos. 23927/94 and 24277/94, 8 July 1999.
• Sürek v. Turkey (no. 1) [GC], no. 26682/95, ECHR 1999-IV.
• Sürek v. Turkey (no. 2) [GC], no. 24122/94, 8 July 1999.
IRIS 1999-8/5
58
European Court of Human Rights: Recent Judgments on the Freedom of Expression and
Information (28 September 1999)
Dirk Voorhoof
On 28 September 1999 the European Court of Human Rights delivered its final judgment in two
cases concerning Article 10 of the Convention.
In the case of Dalban vs. Romania, the "grand chamber" of the Court unanimously reached the
conclusion that there has been a violation of the freedom of expression by the Romanian
authorities. The case concerned an application by Mr. Ionel Dalban who was a journalist and ran
a local weekly magazine, the Cronica Romascana. In 1994, Dalban was convicted for criminal
libel because of some articles that exposed a series of frauds allegedly committed by a senator
(R.T.) and the chief executive (G.S.) of a State-owned agricultural company, Fastrom/State
Farm. Dalban died on 13 March 1998. His widow continued the proceedings in Strasbourg in the
applicant's stead. In the meantime, on 2 March 1999 the Romanian Supreme Court quashed the
conviction of Dalban and acquitted the applicant of the charge of libelling G.S. The proceedings
in the case on the charge relating to Senator R.T. were discontinued due to Mr. Dalban's death. In
its judgment of 28 September 1999 the European Court was of the opinion that the applicant's
conviction constituted an "interference by public authority" with his right to freedom of
expression, without the interference being necessary in a democratic society. The Court
underlines that the articles in issue concerned a matter of public interest and that the press has to
fulfil an essential function in a democratic society. According to the Court there was no proof
that the description of events given in the articles was totally untrue. It is also emphasised that
Dalban did not write about aspects of the private life of senator R.T., but about his behaviour and
attitudes in his capacity as an elected representative of the people. The European Court could not
agree with the Romanian courts that the fact that there had not been a court case against R.T. or
G.S. was sufficient to establish that the information contained in Dalban's articles was false. The
Court reached the conclusion that the applicant's conviction of a criminal offence and the
sentencing to imprisonment amounted to a disproportionate interference with the exercise of his
freedom of expression as a journalist.
The second case of 28 September 1999, Öztürk vs. Turkey, strongly reflects the Court's case-law
of 8 July 1999 in the Turkish cases (IRIS 1999-8: 4-5). Öztürk was convicted for helping to
publish and distribute a book that was considered by the Turkish courts to incite the people to
crime, hatred and hostility. The book described the life (and torture in prison) of one of the
founding members of the Communist Party of Turkey. While the publisher of the book was
convicted, in a separate case the author of the book was acquitted. In evaluating the application
of Article 10 of the Convention, the Strasbourg Court explicitly referred to its case-law of 8 July
1999, in which it emphasised that "there is little scope under Article 10 § 2 of the Convention for
restrictions on political speech or on debate on matters of public interest". The European Court
was not convinced that in the long term the book could have had a harmful effect on the
prevention of disorder or crime in Turkey. Nor was there any indication that Mr. Öztürk bore any
responsibility whatsoever for the problems caused by terrorism in Turkey. Sitting in "grand
59
chamber" the Court unanimously reached the conclusion that once again the Turkish authorities
had violated the freedom of speech and of the press guaranteed by Article 10 of the Convention.
•
•
Dalban v. Romania [GC], no. 28114/95, ECHR 1999-VI.
Öztürk v. Turkey [GC], no. 22479/93, ECHR 1999-VI.
IRIS 1999-10/4
60
Information and on the Right of a Fair Trial and Media Coverage of a Court Case
Dirk Voorhoof
In a judgment delivered on 28 October 1999 in the case of Wille v Liechtenstein, the European
Court of Human Rights held that there has been a violation of Article 10 of the Convention. On
25 November 1999 the European Court of Human Rights delivered judgment in two cases with
regard to Article 10 of the Convention, one in a case against Norway, another in a case against
the United Kingdom. In two judgments of 16 December 1999 the media coverage and extreme
press interest in a court case were considered by the Court as relevant factors in the evaluation of
the right of a fair trial (article 6 § 1 of the Convention).
The case of Wille v Liechtenstein has to do with a reprimand and the refusal by the Prince to reappoint the president of the High Administrative Court. This interference by the Prince was
considered to be a reaction against the opinions that the judge in a public lecture had expressed
on a dispute of constitutional law, opinions which were also published in a newspaper. The Court
found that such an interference by a State authority can give rise to a breach of Article 10 unless
it can be shown that it was in accordance with paragraph 2 of Article 10. According to the Court,
the element that the applicant's opinion had political implications was not in itself a sufficient
reason for the impugned interference. Moreover, there was no evidence to conclude that the
applicant's lecture contained any remarks on pending cases, severe criticism of persons of public
institutions or insults to high officials or the Prince. Even allowing for a certain margin of
appreciation, the Prince's action appeared disproportionate to the aim pursued and was
considered by the Court as a violation of Article 10 of the Convention.
In the case of Nilsen and Johnsen v Norway, the Grand Chamber of the Court concluded that
there was a violation of the applicants' freedom of expression. Nilsen and Johnsen, both
policemen, were convicted in Norway because of defamatory statements published in the press.
These public statements were made in response to various accusations of police brutality which
were reported in a book and had received a lot of media coverage. The statements by Nilson and
Johnson were considered by the Oslo City Court as having a defamatory character towards the
author of the book, a professor of criminal law. According to the European Court in Strasbourg,
the conviction by the Oslo City Court, upheld by the Norway Supreme Court, violated Article 10
of the European Convention for Human Rights. After referring to its classic principles with
regard to the importance of freedom of expression and public debate in a democratic society, the
European Court underlined that while there can be no doubt that any restrictions placed on the
right to impart and receive information on arguable allegations of police misconduct call for a
strict scrutiny on the part of the Court, the same must apply to speech aimed at countering such
allegations since they form part of the same debate. In the Court's view, a degree of exaggeration
should be tolerated in the context of such a heated public debate on affairs of general concern
where professional reputations are at stake on both sides. The Court also noted that there was
factual support for the assumption that false allegations of police brutality had been made by
informers. For these reasons the Strasbourg Court was not satisfied that the litigious statements
exceeded the limits of permissible criticism for the purpose of Article 10 of the Convention.
61
The jugdment in the case of Hashman and Harrup v United Kingdom is one of the very rare
examples in which the Court is of the opinion that an interference by a public authoritiy with the
freedom of expression and information is not "prescribed by law". In its judgment of 25
November 1999 the Grand Chamber of the Court had to evaluate the applicants' allegation of a
violation of Article 10. Both applicants were held responsible by the Crown Court of Dorchester
for unlawful actions and a deliberate attempt to interfere with fox-hunting. The behaviour of
Hashman and Harrup was found to have been contra bonos mores, a behaviour which is to be
considered as wrong rather than right in the judgment of the majority of contemporary fellow
citizens. The applicants were bound over to be of good behavior for a period of one year. The
Strasbourg Court however was of the opinion that the concept of behaviour contra bonos mores
is so broadly defined that it does not comply with the requirement of foreseeability. The legal
basis of such an interference by public authorities is imprecise and does not give the applicants
sufficiently clear guidance as how they should behave in future. The Court also took into
consideration that prior restraint on freedom of expression must call for the most careful
scrutiny. With specific reference to the facts of the case the Court reached the conclusion that the
interference did not comply with the requirement of Article 10 § 2 of the Convention that it be
"prescribed by law".
It is interesting to note that the media coverage of, and the extremely high levels of press and
public interest in, a court case can be regarded as relevant elements in evaluating whether
someone is denied a fair hearing in breach of Article 6 § 1 of the Convention. In two judgments
of 16 December 1999 in the cases T. v United Kingdom and V. v United Kingdom the Court
came to the conclusion that the two applicants - who were both convicted for the abduction and
murder of a two-year-old boy (James Bulger) - were not guaranteed sufficiently the right of a fair
trial, taking into account that both were only eleven years old at the time of the trial before the
Crown Court. According to the European Court, in respect of a young child charged with a grave
offence attracting high levels of media and public interest, it is necessary to conduct the hearing
in such a way as to reduce as far as possible the defendant's feelings of intimidation and
inhibition. The Court inter alia took into consideration that the trial generated extremely high
levels of press and public interest, to the extent that the judge in his summing-up referred to the
problems caused to witnesses by the blaze of publicity and asked the jury to take this into
account when assessing the evidence. In such circumstances the applicants were unable to
participate effectively in the criminal proceedings against them. This led the European Court to
the conclusion that in casu the applicants were denied a fair hearing in breach of Article 6 § 1 of
the Convention.
•
•
•
•
•
Wille v. Liechtenstein [GC], no. 28396/95, ECHR 1999-VII.
Nilsen and Johnsen v. Norway [GC], no. 23118/93, ECHR 1999-VIII.
Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, ECHR 1999-VIII.
T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999.
V. v. the United Kingdom [GC], no. 24888/94, ECHR 1999-IX.
IRIS 2000-1/2
62
European Court of Human Rights: Recent Judgment on the Freedom of Expression and
Information and the Publication of Photographs of a Suspect
Dirk Voorhoof
On 11 January 2000 the European Court of Human Rights delivered judgment in the case News
Verlags GmbH & CoKG v. Austria. The case concerns an injunction by the Vienna Court of
Appeal prohibiting a magazine to publish photographs of a person (B) in the context of its court
reporting. B was suspected of being responsible for a letter-bomb campaign in 1993. According
to the Court, the prohibition on publishing such photographs in connection with reports on the
criminal proceedings is to be considered as an interference with the applicant's freedom of
expression and information. The Court agrees that the interference was prescribed by Austrian
law and pursued a legitimate aim, as the injunction had the aim of protecting the reputation or
rights of B as well as the authority and impartiality of the judiciary. The Court decided however
that the injunction was disproportionate and hence violated article 10 of the Convention.
The Court recalled that "it is not for the Court, or for the national courts for that matter, to
substitute their own views for those of the press as to what technique of reporting should be
adopted by journalists". Furthermore the media have not only the right, but even the duty,
according to the Court to impart - in a manner consistent with their obligations and
responsibilities - information and ideas on all matters of public concern, including reporting and
commenting on court proceedings. The Court emphasised that the criminal case relating to the
letter-bombs was a news item of major public concern at the time and that B was arrested as the
main suspect. Although the injunction in no way restricted the applicant company's right to
publish comments on the criminal proceedings against B, it was underlined, however, that it
restricted the applicant's choice as to the presentation of its report, while undisputedly other
media were free to continue to publish B's picture throughout the criminal proceedings against
him. An absolute prohibition on publishing pictures of B in the press reports of the magazine
"News" was considered by the Court to be a disproportionate measure. As the Court underlines:
"The absolute prohibition on the publication of B's picture went further than was necessary to
protect B against defamation or against violations of the presumption of innocence". It followed
from these conclusions by the Court that the interference with the applicant's right to freedom of
expression was not "necessary in a democratic society" and accordingly violated Article 10 of
the Convention.
•
News Verlags GmbH & Co.KG v. Austria, no. 31457/96, ECHR 2000-I.
IRIS 2000-2/1
63
Information
Dirk Voorhoof
In the case Fuentes Bobo v. Spain the Court reached the conclusion that the dismissal of an
employee of the public broadcasting organisation TVE was to be considered a violation of the
right to freedom of expression. In 1993 Fuentes Bobo co-authored an article in the newspaper
Diario 16 criticising certain management actions within the Spanish public broadcasting
organisation. Later in two radio programmes Fuentes Bobo made critical remarks about some
TVE-managers. These remarks led to disciplinary proceedings that resulted in the applicant's
dismissal in 1994. In its judgment of 29 February 2000 the Court (Fourth Section) was of the
opinion that the dismissal of the applicant due to certain offensive statements was to be
considered an interference by the Spanish authorities with the applicant's freedom of expression.
The Court pointed out that Article 10 of the Convention is also applicable to relations between
employer and employee and that the State has positive obligations in certain cases to protect the
right of freedom of expression against interference by private persons. Although the interference
was prescribed by law and was legitimate in order to protect the reputation or rights of others, the
Court could not agree that the severe penalty imposed on the applicant met a "pressing social
need". The Court underlined that the criticism by the applicant had been formulated in the
context of a labour dispute within TVE and was to be included in a public discussion on the
failings of public broadcasting in Spain at the material time. The Court also took into
consideration that the offensive remarks attributed to the applicant appeared more or less to have
been provoked during lively and spontaneous radio shows in which he participated. Because no
other legal action had been taken against the applicant with regard to the "offensive" statements
and because of the very severe character of the disciplinary sanction the Court finally came to the
conclusion that the dismissal of Fuentes Bobo was a violation of Article 10 of the Convention.
In a judgment delivered on 16 March 2000 in the case of Özgür Gündem v. Turkey the European
Court (Fourth Section) once more held that there has been a violation of Article 10 of the
Convention by the Turkish authorities. Özgür Gündem was a daily newspaper published in
Istanbul during the period from 1992 to 1994, reflecting Turkish Kurdish opinions. After a
campaign that involved killings, disappearances, injuries, prosecutions, seizures and
confiscation, the newspaper ceased publication. The applicants submitted that the State
authorities had failed to provide protection for the newspaper and complained of the convictions
arising from its reporting on the Kurdish issue that was estimated as constituting separatist
propaganda and provoking racial and regional hatred. In respect of the allegations of attacks on
the newspaper and its journalists, the Court was of the opinion that the Turkish authorities should
have better protected Özgür Gündem. The Court considered that although the essential object of
many provisions of the Convention is to protect the individual against arbitrary interference by
public authorities, there may be positive obligations inherent in an effective respect for the rights
concerned. The Court stated that genuine, effective exercise of freedom of expression "does not
depend merely on the State's duty not to interfere, but may require positive measures of
protection, even in the sphere of relations between individuals". In the case of Özgür Gündem
the Turkish authorities have not only failed in their positive obligation to protect the freedom of
64
expression of the applicants. According to the Court the search operations, prosecutions and
convictions for the reporting on the Kurdish problem and for criticising government policy
violated Article 10 as well. The Court underlined that the authorities of a democratic State must
tolerate criticism, even if it may be regarded as provocative or insulting. The judgment also
emphasised that the public enjoys the right to be informed of different perspectives on the
situation in south-east Turkey, irrespective of how unpalatable those perspectives appear to the
authorities. An important element was also that the reporting by Özgür Gündem was not to be
considered as advocating or inciting the use of violence. The Court held unanimously that there
was a breach of Article 10 of the Convention.
In a judgment of 21 March 2000 the European Court of Human Rights (Third Section) found no
violation of the right to freedom of expression in the case of Andreas Wabl v. Austria. Wabl, a
member of Parliament, has accused the newspaper Kronen-Zeitung of "Nazi journalism" after the
newspaper had quoted a police officer calling for Wabl to have an AIDS-test. The police officer's
arm had been scratched by Wabl in the course of a protest campaign. Proceedings against Wabl
led to an injunction to prevent him repeating the impugned statement of "Nazi journalism".
Although the article published in the Kronen-Zeitung was to be considered as defamatory, the
Court had particular regard to the special stigma that attaches to activities inspired by National
Socialist ideas and to the fact that according to Austrian legislation it is a criminal offence to
perform such activities. The Court also took into account that the applicant was only prohibited
from repeating the statement that the reporting in the Kronen-Zeitung amounted to "Nazi
journalism" or the making of similar statements. Hence the applicant retained the right to voice
his opinion regarding this reporting in other terms. The Court reached the conclusion that the
Austrian judicial authorities were entitled to consider that the injunction was necessary in a
democratic society and that accordingly there was no violation of Article 10 of the Convention.
•
•
•
Fuentes Bobo v. Spain, no. 39293/98, 29 February 2000.
Özgür Gündem v. Turkey, no. 23144/93, ECHR 2000-III.
Wabl v. Austria, no. 24773/94, 21 March 2000.
IRIS 2000-4/1
65
European Court of Human Rights: New Judgment on the Journalistic Freedom
Dirk Voorhoof
In a judgment delivered at Strasbourg on 2 May 2000 the European Court of Human Rights
(Third Section) found unanimously that in the case of Bergens Tidende the Norwegian
authorities have infringed Article 10 of the European Convention on Human Rights. The daily
newspaper Bergens Tidende, its editor-in-chief and a journalist were convicted in 1994 by the
Norwegian Supreme Court because of defamatory articles on the issue of plastic surgery. The
articles, some of them accompanied by large colour photographs, described in detail how women
had experienced their situation after allegedly failed operations and a lack of care and follow-up
treatment by a certain Dr. R. The latter instituted defamation proceedings against the newspaper
which finally led to a conviction by the Supreme Court. Because some accusations at the adress
of Dr. R. and the practices in his clinic were considered by the Court as not been proven, the
newspaper, its editor-in-chief and the journalist who wrote the articles were ordered to pay the
plaintiff amounts totalling Norwegian Krone (NOK) 4,709,861 (approximately 4 million French
francs) in respect of damages and costs. According to the Supreme Court the fact that the
newspaper only repeated the accusations made by others did not constitute a sufficient defence.
As so often, the dispute before the European Court related to whether the interference was
"necessary in a democratic society" as it was undisputed that the interference was "prescribed by
law", namely section 3-6 of the Norwegian Damage Compensation Act 1969 and pursued the
legitimate aim of protecting "the reputation or rights of others". The Strasbourg Court observed
at the outset that the impugned articles, which recounted the personal experiences of a number of
women who had undergone cosmetic surgery, concerned an important aspect of human health
and as such raised serious issues affecting the public interest. The Court also took note of the fact
that the applicants had been acting in good faith in order to provide accurate and reliable
information in accordance with the ethics of journalism and attached considerable weight to the
fact that in the present case the women's accounts of their treatment by Dr. R. had been found not
only to have been essentially correct but also to have been accurately recorded by the newspaper.
It was true that, as pointed out by the national courts, the women had expressed themselves in
graphic and strong terms and that it was these terms which had been highlighted in the
newspaper articles. However, reading the articles as a whole, the Strasbourg Court did not find
that the statements were excessive or misleading. The Court also referred to its standard
jurisprudence according to which "news reporting based on interviews constitutes one of the
most important means whereby the press is able to play its vital role of "public watchdog" (..), it
is not for the Court, any more than it is for the national courts, to substitute its own views for
those of the press as to what techniques of reporting should be adopted by journalists".
In these circumstances the reasons relied on by the respondent State, although relevant, were not
sufficient to show that the interference complained of was "necessary in a democratic society".
The Court considered that there was no reasonable relationship of proportionality between the
restrictions placed by the measures applied by the Supreme Court on the applicants' right to
freedom of expression and the legitimate aim pursued. Accordingly there was a violation of
Article 10 of the Convention.
66
•
Bergens Tidende and Others v. Norway, no. 26132/95, ECHR 2000-IV.
IRIS 2000-5/1
67
European Court of Human Rights: Recent Judgments on the Freedom of Expression. The
Cases of Erdogdu v. Turkey and Constantinescu v. Romania
Dirk Voorhoof
Once again the European Court of Human Rights has held that the Turkish authorities have acted
in breach of Article 10 of the Convention, this time by convicting Ümit Erdogdu, the editor of
the review Isçilerin Sesi ("The Workers' Voice"). In 1993 Erdogdu was sentenced to six months'
imprisonment and fined by the National Security Court: an article published in the review was
considered to be propaganda against the territorial integrity of the State, which is an offence
under the Prevention of Terrorism Act. The Court especially took into account that the article
referred to parts of Turkish territory as Kurdistan and applauded acts of violence and the national
resistance against the State by the PKK. In 1997 the National Security Court deferred sentencing
Mr. Erdogdu, ordering that he would be sentenced if, within three years from the date of deferral,
he was convicted in his capacity as editor of an offence with intent.
In a judgment delivered at Strasbourg on 15 June 2000 the European Court of Human Rights
(Fourth Section) has found that by convicting Erdogdu the judicial authorities of Turkey violated
Article 10 of the European Convention on Human Rights. According to the Strasbourg Court, the
Turkish authorities did not take sufficient account of the freedom of the press or the right of the
public to have access to a different perspective on the Kurdish problem. Although the Court
underlined its awareness of the concerns of the authorities regarding the fight against terrorism, it
was not persuaded that the litigious article would have highly detrimental consequences for the
prevention of disorder and crime in Turkey. Nor was the article to be considered as an incitement
to violence and hatred. As to the applicant's benefiting from a deferral of sentence, the Court was
of the opinion that because this order only took effect if Mr. Erdogdu committed no further
offences with intent as an editor, this was to be considered as a ban effectively censoring the
applicant's exercise of his profession. The Court also regarded the ban as unreasonable, as it
forced Mr. Erdogdu to refrain from publishing any article that would be considered contrary to
the interests of the State. Such a limitation on freedom of journalistic expression was
disproportionate because it meant that only ideas that were generally accepted, welcome or
regarded as inoffensive or neutral could be expressed. Consequently, the Court concluded that
there had been a violation of Article 10 of the Convention. The Turkish judge of the European
Court of Human Rights, Judge Gölcüklü delivered a separate opinion. Although he voted with
the majority of the Court, Judge Gölcüklü expressed his doubts on the political opportunity to
protect the freedom of expression in a way that this freedom can be abused to undermine the
democratic rights and freedoms itself.
In the case of Constantinescu v. Romania, the European Court of Human Rights in its judgment
of 27 June 2000 (First Section) found no violation of Article 10 of the Convention. The case
concerns the applicant's conviction for criminal defamation. Constantinescu, the president of a
teachers' trade union, was convicted by the Bucharest District Court in 1994 following the
publication in the press of comments he had made regarding an internal dispute in the Union and
the functioning of the judicial system. More specifically, in an interview with a journalist of the
newspaper Tineretul Liber Constantinescu had referred to three members of the previous trade
68
union leadership who had refused to return money belonging to the Union after the election of
new leaders as delapidatori (receivers of stolen goods). It was also mentioned that the new
leadership of the Union had lodged a criminal complaint against them. The Bucharest District
Court considered these statements by Constantinescu as defamatory, as he must have been aware
when making this remarks in the presence of journalists that the prosecution had dropped the
charges against the three teachers concerned. Before the Strasbourg Court Constantinescu
alleged a violation of Article 6 (fair trial) and Article 10 (freedom of expression) of the European
Convention. He maintained that he had not been allowed to prove that his comments were true
and had not been informed that the charges had been dropped by the prosecution when the article
appeared. As a matter of fact, the European Court of Human Rights noted a violation of Article 6
of the Convention because the Bucharest District Court found the applicant guilty of defamation
without affording him an opportunity to give evidence and defend his case. On the other hand,
the Court found no violation of Article 10 of the Convention. The European Court of Human
Rights underlined that the Bucharest District Court had based its conviction on the use of the
defamatory word delapidatori by Constantinescu referring to the three teachers, and not on the
fact that he had expressed opinions criticising the functioning of the system of justice in trade
union disputes. The Court considered that Constantinescu could quite easily have voiced his
criticism and contributed to a free public debate on trade union problems without using the word
delapidatori, which explicitly refers to a criminal offence, of which the three teachers were never
convicted. Accordingly, Constantinescu should have refrained from using this description.
Hence, the Strasbourg Court reached the conclusion that the State's legitimate interest in
protecting the reputation of the three teachers did not conflict with the applicant's interest in
contributing to the aforementioned debate. The Court also found that the penalty imposed,
namely a fine of 50,000 ROL (leu) and an award of 500,000 ROL (leu) to each teacher for nonpecuniary damage, was not disproportionate. It was within their margin of appreciation for the
Romanian courts to consider the conviction of Constantinescu "necessary in a democratic
society" in order to protect the rights of others, which is fully in accordance with para. 2 of
Article 10 of the Convention. In a partially dissenting opinion judge Casadevall (Andorra)
expressed his opinion that the arguments developed by the Romanian authorities were neither
pertinent nor sufficient to legitimise the interference in the applicant's freedom of expression.
Casadevall inter alia referred to the judgment of the Romanian Supreme Court in 1999 which
annuled the applicant's conviction because the motive of intent to defame was not proven.
According to Casadevall this judgment in itself contained an implicit confirmation of a violation
of Article 10 of the European Convention.
•
•
Erdoğdu v. Turkey, no. 25723/94, ECHR 2000-VI.
Constantinescu v. Romania, no. 28871/95, ECHR 2000-VIII.
IRIS 2000-7/1
69
European Court of Human Rights: Judgment on the Freedom of Expression in the Case
Sener v. Turkey.
Dirk Voorhoof
Once again the European Court of Human Rights has held that the Turkish authorities have acted
in breach of Article 10 (and Article 6) of the Convention, this time by convicting the owner and
editor of the weekly review Haberle Yorumda Gerçek ("The Truth of News and Comments"). In
1994 Sener was sentenced to six months' , imprisonment and a fine by the Istanbul State Security
Court: an article published in the review was considered to be an offence under the Prevention of
Terrorism Act 1991. In the proceedings before the European Court, the Turkish government
asserted that the applicant was responsible for separatist propaganda since the article encouraged
terrorist violence against the State. In the government's opinion, the message that the article
conveyed was that the only means of resolving the Kurdish problem was the maintenance of
terrorist activities against the State.
In its judgment of 18 July 2000, the European Court of Human Rights (Third Section) has
summarised the basic principles established in its case law concerning Article 10 of the
Convention, referring in particular to the essential role of journalism and the media in ensuring
the proper functioning of political democracy. The Court also underlined, in line with its case
law, that there was little scope under Article 10 paragraph 2 for restrictions on political speech or
on debate on matters of public interest. In contrast with the Turkish judicial authorities, the
European Court was of the opinion that although the impugned article contained certain phrases
that were aggressive in tone, the article as a whole did not glorify violence, nor did it incite
people to hatred, revenge or armed resistance. On the contrary, the Strasbourg Court considereds
the article to be an intellectual analysis of the Kurdish problem calling for an end to the armed
conflict. The Court was of the opinion that the domestic authorities failed to give sufficient
weight to the public's right to be informed of a different perspective on the situation in south-east
Turkey, irrespective of how unpalatable that perspective might be for them. The Court finally
came to the conclusion that by convicting Sener the Turkish judicial authorities infringed Article
10 , of the European Convention on Human Rights.
The Court also reached the conclusion that because of the presence of a military judge on the
bench of the Istanbul State Security Court, Sener was denied a fair , trial, in breach of Article 6 §
1 of the Convention.
The Turkish judge Gölcüklü expressed a dissenting opinion and argued that in the present case
he did not find any violation imputable to the respondent State.
•
Şener v. Turkey, no. 26680/95, 18 July 2000.
IRIS 2000-8/1
70
European Court of Human Rights: Recent Judgments on the Freedom of Expression
Dirk Voorhoof
In a judgment of 21 September 2000, the Austrian broadcasting legislation is once more being
analysed by the Strasbourg Court (Second Section) from the perspective of Article 10 of the
European Convention, this time after a complaint by a private organisation that did not obtain a
licence to set up and operate a television transmitter in the Vienna area. In its judgment of 24
November 1993 in the Informationsverein Lentia case, the European Court of Human Rights
already decided that the monopoly of the Austrian public broadcasting organisation ORF was in
breach of Article 10 of the European Convention on Human Rights and Fundamental Freedoms.
This point of view was confirmed in a judgment of 20 October 1997 in the case of Radio ABC v.
Austria. The Court was of the opinion that at least until 1 May 1997 there was no legal basis
whereby an operating licence could be granted to any radio station other than the Austrian
Broadcasting Corporation, a situation which violated Article 10 of the European Convention (see
IRIS 1997-10: 3). In its judgment of 21 September 2000, the European Court now notes that until
1 August 1996 it was not possible to obtain a licence to operate a television transmitter in
Austria. Hence, the situation of Tele 1 was not different from that of the applicants in the
Informationsverein Lentia case. Accordingly, there was a breach of Article 10 during that period.
The Strasbourg Court notes, however, that as of 1 August 1996 private broadcasters were free to
create and transmit their own programmes via cable network without any conditions being
attached, while terrestrial television broadcasting was still reserved to the ORF. The Court is of
the opinion that cable television broadcasting offered private broadcasters a viable alternative to
terrestrial broadcasting as almost all households receiving television in Vienna had the
possibility of being connected to the cable net. Thus, the interference with the applicant's right to
impart information resulting from the impossibility of obtaining a licence for terrestrial
broadcasting can no longer be regarded as a breach of Article 10. The Court did not decide on
the question whether or not the Cable and Satellite Broadcasting Act, which came into force on 1
July 1997, is in breach of Article 10 of the Convention. The Court underlines that the applicant
has not made notification of any cable broadcasting activities nor had it submitted an application
for a satellite broadcasting licence. Consequently, it is not necessary for the Court to rule on this
period as it is not its task to rule in abstracto whether legislation is compatible with the
Convention. The Court comes to the conclusion that there has been a breach of Article 10 in the
first period (from 30 November 1993 to 1 August 1996), while there has been no violation of this
Article in the second period (from 1 August 1996 to 1 July 1997).
In a judgment delivered at Strasbourg on 28 September 2000 the European Court of Human
Rights (Fourth Section) has found that by convicting Lopes Gomes da Silva the judicial
authorities of Portugal infringed Article 10 of the European Convention on Human Rights. Lopes
Gomes da Silva, the manager of the daily newspaper Público, was sentenced by the Lisbon Court
of Appeal for criminal libel through the press. The conviction was the result of a criminal
complaint by a candidate for the local elections in 1993, Mr. Silva Resende. In an editorial
published in Público shortly before the elections, Lopes Gomes da Silva referred to Resende as a
"grotesque and clownish candidature" and as an "incredible mixture of reactionary coarseness,
fascist bigotry and vulgar anti-Semitism". Lopes Gomes da Silva was ordered to pay PTE
71
150.0000 as a criminal fine and to pay PTE 250.000 to Silva Resende in damages. In a
unanimous decision the Strasbourg Court held that this conviction was a breach of Article 10 of
the Convention. The Court once more emphasised the particular importance of the freedom of
the press and underlined that the limits of acceptable criticism are wider with regard to a
politician acting in his public capacity and that journalists could resort to a degree of
exaggeration or even provocation. By reproducing a number of extracts from recent articles by
Silva Resende alongside his editorial, Lopes Gomes da Silva had complied with the rules of
journalism, a matter to which the Court attached considerable importance. Although the penalty
had been minor, the Court decided that the conviction for libel was not a measure that was
reasonably proportionate to the legitimate aim pursued. Consequently, the Court concluded that
•
•
Tele 1 Privatfernsehgesellschaft mbH v. Austria, no. 32240/96, September 2000.
Lopes Gomes da Silva v. Portugal, no. 37698/97, ECHR 2000-X.
IRIS 2000-9/1
72
European Court of Human Rights: Finding against France on Violation of Article 10
Charlotte Vier
Légipresse
Almost two years after the Canard Enchaîné case, the European Court of Human Rights has
again found that France has violated the principles contained in Article 10 of the Human Rights
Convention.
The case concerned the finding against the director of a newspaper and a journalist who had
reported on the proceedings brought by a company that managed hostels for immigrant workers
against one of its former directors. It was taken on the basis of Article 2 of the Act of 2 July
1931, which prohibits the publication before the Courts reach a verdict, of any information
concerning proceedings instigated by an individual. The Court of Appeal in Paris, to which the
case had been referred, had considered that the ban contained in the 1931 act was compatible
with Article 10 of the Convention inasmuch as it was aimed at guaranteeing the presumption of
innocence and therefore fell within the scope of the restrictions on freedom of expression
authorised by the Act.
As the Court of Cassation had rejected the appeal lodged against this decision, the plaintiffs took
the case to the European Court of Human Rights ("Court"). In its decision of 3 October 2000, the
Court recalled firstly that journalists writing articles on current criminal proceedings must
respect the rights of the parties involved. In considering whether interference with the course of
justice was involved, the Court noted that the disputed ban - which was absolute and general,
covering any type of information - only concerned proceedings instigated by an individual and
not those instigated by the Public Prosecutor or on the basis of an ordinary complaint. The judges
expressed surprise at this difference of treatment, which did not appear to be based on any
objective reason, since the ban prevents the press informing the public of facts which may be of
public interest (here, the case brought against political figures and their allegedly fraudulent acts
in managing a public-sector company).
The Court held that there were other mechanisms for protecting secrecy during investigation and
enquiry procedures, such as Articles 11 and 91 of the Code of Criminal Procedure and in
particular Article 9-1 of the Civil Code, which provides that everyone is entitled to the benefit of
the presumption of innocence. In addition, the latter provision states that in the event of a person
against whom a charge has been brought and proceedings instigated by an individual being
presented publicly, before any verdict is passed, as being guilty of the facts being investigated or
enquired into by the courts, the judge may, even in urgent matters, order the insertion in the
publication concerned of an announcement putting a stop to the infringement of the presumption
of innocence.
This range of provisions, which the Court found sufficient, made the total ban contained in the
Act of 2 July 1931 unnecessary; France had therefore been found in violation of Article 10 since
the ban was not proportionate to the pursuit of the legitimate aims intended.
•
Du Roy and Malaurie v. France, no. 34000/96, ECHR 2000-X.
73
IRIS 2000-9/2
74
European Court of Human Rights: Recent Judgments on the Freedom of Expression
Dirk Voorhoof
In a judgment of 10 0ctobre 2000 the European Court of Human Rights (first section) has held in
the case of Akkoç v. Turkey that a disciplinary sanction because of an interview published in a
newspaper, was not in breach of Article 10 of the Convention. The applicant, a former teacher,
received a disciplinary punishment in 1994 for a statement made to the press in which she
declared that at a meeting some teachers were assaulted by the police. In 1998, however, the
Supreme Administrative Court decided that the disciplinary sanction was unlawful. In 1999 the
Administrative Court adopted the reasoning of the Supreme Administrative Court and finally
cancelled the disciplinary sanction imposed on the applicant. The Strasbourg Court decided that
although five years and nine months is a considerable period of time, it did not deprive the
domestic procedures of efficacy in providing adequate redress. The Administrative Court
quashed the disciplinary sanction which thereby ceased, retrospectively, to have any effect,
vindicating the applicant's right of freedom of expression. In such circumstances the applicant
cannot longer claim to be a victim of an interference with her right of freedom of expression
under Article 10 of the Convention.
In the same case, however, the Court found a violation of Article 2 of the Convention (right to
life) and Article 3 of the Convention in respect of the torture of the applicant in police custody.
In another judgment of 10 October 2000 the European Court of Human Rights (3rd section) in
the case of Ibrahim Aksoy v. Turkey concluded that Article 10 of the Convention had been
violated. The applicant, a writer and former Member of Parliament, was convicted several times
in Turkey for disseminating separatist propaganda. Neither the speech at a regional congress, nor
the publication of an article in a weekly magazine, nor the content of a leaflet, could justify these
convictions according to the Strasbourg Court. The Court was of the opinion that the speech, the
article and the leaflet did not constitute an incitement to violence, armed resistance or an
uprising. The Court emphasised that one of the principal characteristics of democracy is the
possibility to resolve a country's problems through dialogue and without recourse to violence,
even when it is irksome. According to the Strasbourg Court, the conviction of the applicant could
not be regarded as necessary in a democratic society and hence violated Article 10 of the
European Convention on Human Rights. This judgment is not final. Either party to the case may,
within three months from the date of the judgment of a Chamber, request that the case be
referred to the Grand Chamber (Art. 43-44 of the Convention).
•
•
Akkoç v. Turkey, nos. 22947/93 and 22948/93, ECHR 2000-X.
İbrahim Aksoy v. Turkey, nos. 28635/95, 30171/96 and 34535/97, 10 October 2000.
IRIS 2000-10/2
75
European Court of Human Rights: Judgment on the Freedom of Expression in the Case
Tammer v. Estonia
Dirk Voorhoof
In a judgment in the case Tammer v. Estonia the European Court of Human Rights held
unanimously that there had been no violation of Article 10 of the Convention. In 1997 Tammer,
a journalist and editor of the Estonian daily newspaper Postimees, was convicted of the offence
of insult under Article 130 of the Criminal Code. He was found guilty and had to pay a fine of
220 Estonian kroons because of the degradation of another person's honour or dignity in an
improper form. Tammer was convicted after a private prosecution instituted by Ms. Laanaru, the
second wife of Mr. Savisaar, the former Prime Minister of Estonia. The journalist had published
an interview in his newspaper which contained some value judgments that were considered as
insulting allegations with regard to Ms. Laanaru. More precisely, in an interview with the author
who published a series of articles on the life of Ms. Laanaru, Tammer had raised the question if
the publication of this kind of memoire did not make a hero of the wrong person. Tammer also
formulated a critical value judgment in his question by putting it as follows : "A person breaking
up another's marriage (abielulõhkuja), an unfit and careless mother deserting her child
(rongaema): it does not seem to be the best example for young girls". After exhausting all
national remedies before the Estonian courts, Tammer applied to the European Court of Human
Rights alleging a violation of Article 10 of the Convention.
The Strasbourg Court however was of the opinion that the interference in the right of freedom of
expression of Tammer met all three conditions of Article 10 paragraph 2. Tammer's conviction
was prescribed by law, pursued a legitimate aim and was to be considered as necessary in a
democratic society. The Court noted the assesment of the domestic courts concerning the nature
and use of the words in the circumstances of the case and considered that the applicant journalist
could have formulated his criticism of Ms. Laanaru's actions without resorting to insulting
language. The Strasbourg Court did not find it established that the use of the impugned terms in
relation to Ms. Laanaru's private life was justified in terms of public concern or that they bore on
a matter of general importance. The Court considered that the domestic courts properly balanced
the various interests involved in the case. Taking into account the margin of appreciation, the
Court reached the conclusion that the national authorities were indeed justified in the
circumstances in interfering with the exercise of the applicant's right, noting also the limited
amount of the fine imposed on Tammer as a penalty. Therefore, there had not been a violation of
Article 10 of the European Convention.
This judgment will become final in accordance with the circumstances set out in Article 44
paragraph 2 of the Convention.
•
Tammer v. Estonia, no. 41205/98, ECHR 2001-I.
IRIS 2001-3/1
76
European Court of Human Rights: Recent Judgment on Freedom of Expression in the
Case of Jerusalem v. Austria
Dirk Voorhoof
In a judgment of 27 February 2001, the European Court of Human Rights once again recognised
the importance of freedom of political debate in a democratic society, while re-emphasising the
difference between factual allegations and value judgments. In the case of Jerusalem v. Austria,
the applicant, Mrs Susanne Jerusalem, a member of the Vienna Municipal Council, alleged that
an injunction prohibiting her from repeating certain statements violated her right to freedom of
expression. In a speech in the course of a debate in the Municipal Council on the granting of
public subsidies to associations, she had sharply criticised two associations, describing them as
"sects" which had "a totalitarian character" and "fascist tendencies". The Regional Court granted
an injunction prohibiting Mrs Jerusalem from repeating the statements. The injunction was
upheld by the Court of Appeal and by the Supreme Court, both of which essentially reasoned
that allegations such as "fascist tendencies" or "sects with a totalitarian character" were
statements of fact which the applicant had failed to prove.
However, the European Court of Human Rights held unanimously that there had been a violation
of Article 10 of the European Convention on Human Rights. The Court observed that the
applicant was an elected politician and that freedom of expression is especially important for
elected public representatives. The applicant's statements were made in the course of a political
debate and, although not covered by immunity as they would have been in a session of the
Regional Parliament, the forum was comparable to Parliament insofar as the public interest in
protecting the participants' freedom of expression was concerned. According to the Court,
"Parliament or such comparable bodies are the essential fora for political debate [in a
democracy]. Very weighty reasons must be advanced to justify interfering with the freedom of
expression exercised therein".
The Court regarded the statements of Mrs Jerusalem as value judgments and took into
consideration the fact that she had offered documentary evidence which might have been
relevant in showing that these value judgments were fair comment. By requiring the applicant to
prove the truth of her statements, while at the same time depriving her of an effective
opportunity to produce evidence to support them, the Austrian Courts had taken a measure that
amounted to a disproportionate interference with her right to freedom of expression. The Court
also stated that the requirement to prove the truth of a value judgment is impossible to fulfil and
infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10
of the Convention. The Court concluded that the injunction preventing the repetition of the
impugned statements was not necessary in a democratic society and hence violated Article 10.
The judgment will become final in accordance with Article 44 of the Convention, which governs
the finalisation of judgments by the Court.
•
Jerusalem v. Austria, no. 26958/95, ECHR 2001-II.
77
IRIS 2001-4/2
78
European Court of Human Rights: Cases of B. and P. v. the United Kingdom
Dirk Voorhoof
In the cases of B. and P. v. the United Kingdom, the applicants complained that they had been
barred from divulging information about the proceedings on custody rights over their children.
The judge dealing with the case had ordered that no documents used in the proceedings should
be disclosed outside the court. B. had also been warned by the judge that any publication of
information obtained in the context of the proceedings would amount to contempt of court. As
the case was not heard in public and the judgments were not publicly pronounced, B. and P.
complained in Strasbourg that these restricting measures on the publicity of their court case
ought to have been considered to be in breach of Article 6 § 1 (right to a fair hearing) and
Article10 (freedom of expression) of the European Convention on Human Rights.
In a judgment of 24 April 2001, the European Court of Human Rights (Third Section) noted that
the proceedings in question concerned the residence of each man's son following the parents'
divorce or separation, which were prime examples of cases where the exclusion of the press and
public might be justified to protect the privacy of the child and parties and to avoid prejudicing
the interests of justice. Concerning the publication of the judgments in question, the Court
observed that anyone who could establish an interest was able to consult and obtain a copy of the
full text of the judgments in child residence cases, while some of these judgments were routinely
published, thus enabling the public to study the manner in which the courts generally approach
such cases and the principles applied in deciding them. Under these circumstances, the Court
reached the conclusion that there had been no violation of Article 6 § 1, either regarding the
applicants' complaints about the public hearing or the public pronouncement of the judgments.
Finally, the Court held that it was not necessary to examine separately the applicants' complaint
under Article 10 of the Convention, thereby implying that the Court did not find a violation of
Article 10 of the Convention either.
•
B. and P. v. the United Kingdom, nos. 36337/97 and 35974/97, ECHR 2001-III.
IRIS 2001-6/1
79
European Court of Human Rights: Case of Cyprus v. Turkey
Dirk Voorhoof
The judgment of the European Court of Human Rights (Grand Chamber) of 10 May 2001 deals
with one of the few cases in which the applicant is the government of another State Party to the
European Convention for the Protection of Human Rights and Fundamental Freedoms. In this
case, the Government of the Republic of Cyprus alleged that due to Turkey's military operations
in Northern Cyprus, and especially after the proclamation of the Turkish Republic of Northern
Cyprus in 1983 ("the TRNC"), the Government of Turkey was to be considered responsible for
continuing violations of several human rights. One of the violations arising out of the living
conditions of Greek Cypriots in Northern Cyprus concerned freedom of expression and
information, as protected by Article 10 of the Convention. More specifically, it was asserted that
the TRNC authorities engaged in excessive censorship of school-books and restricted the
importation and distribution of media, especially Greek-language newspapers and books whose
content they disapproved. Referring to the Commission's report, the Court was of the opinion
that there was not sufficient evidence that restrictions were imposed on the importation of
newspapers, the distribution of books or on the reception of electronic media. The Court, on the
other hand, found that during the period under consideration, a large number of school-books, no
matter how innocuous their content, were unilaterally censored or rejected by the authorities.
According to the Court, the respondent Government failed to provide any justification for this
form of wide-ranging censorship which far exceeded the limits of confidence-building methods
and amounted to a denial of the right to freedom of information. These measures of excessive
censorship were considered by the Court to be a violation of Article 10 of the Convention.
•
Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV.
IRIS 2001-6/2
80
European Court of Human Rights: Case of VGT Verein gegen Tierfabriken v. Switzerland
Dirk Voorhoof
In its judgment of 28 June 2001, the European Court of Human Rights has developed a
remarkable approach with regard to the right of access to broadcast "non-commercial" television
commercials. Although the judgment of the Court is essentialy declaratory, it can be interpreted
as affording arguments for a "right to an antenna", ie a right of access to a particular media
controlled by a third person.
The case originates in an application against Switzerland because of the refusal in 1994 by the
AG für das Werbefernsehen (Commercial Television Company, now Publisuisse) to broadcast a
commercial concerning animal welfare at the request of the Verein gegen Tierfabriken
(Association against industrial animal production - VGT). The television commercial was to be
considered as a response to the advertisements of the meat industry, and ended with the words
"eat less meat, for the sake of your health, the animals and the environment". The Commercial
Television Company refused to broadcast the commercial, however, because it considered it to
be a message with a clear political character, and Swiss broadcasting law prohibits political
advertisements on radio and television. The applicant's administrative law appeal was dismissed
by the Bundesgericht (Federal Court) on 20 August 1997, relying inter alia on the legitimate aim
of the prohibition of political advertising stated in Section 18 Paragraph 5 of the Federal Radio
and Television Act.
The European Court of Human Rights in its judgment of 28 June 2001 agreed that a ban on
political advertisements on television as such can be considered to have a legitimate aim, in order
to prevent financially-strong groups from obtaining a competitive advantage in politics and to
spare the political process from undue commercial influence. Such a ban can also help to provide
for a certain equality of opportunity between political movements in society, and to support the
press which remained free to publish political advertisements. The Court also agreed that the
commercial could be regarded as "political" within the meaning of Section 18 Paragraph 5 of the
Swiss Federal Radio and Television Act. Indeed, rather than inciting the public to purchase a
particular product, it reflected some controversial opinions on an actual debate in society.
On the decisive question of whether the refusal to broadcast the commercial was necessary in a
democratic society, the Court took into account several factors. First of all, the Court observed
that powerful financial groups obtain competitive advantages through commercial advertising
and might therefore exercise pressure on, and eventually curtail, the freedom of the radio and
television stations broadcasting the commercials. The Court underlined that such situations
undermine the fundamental role of freedom of expression in a democratic society. Here,
however, the applicant association, did not constitute a powerful financial group. Rather than
seeking to abuse a competitive advantage, the association was intending to participate by means
of its proposed commercial in an ongoing general debate on animal protection. Secondly:
although a prohibition on political advertising can be compatible with the requirements of Article
10 of the Convention, the Court was of the opinion that Section 18 Paragraph 5 of the Swiss
Federal Radio and Television Act was in casu not applied in accordance with Article 10 of the
81
European Convention. According to the Strasbourg Court, the Swiss authorities had not
demonstrated in a "relevant and sufficient" manner why the grounds generally advanced in
support of the prohibition on political advertising also served to justify the interference in the
particular circumstances of the case. Furthermore, the Court underlined that the domestic
authorities did not adduce the disturbing nature of any particular sequence, or of any particular
words of the commercial as a ground for refusing to broadcast it. Finally, it was also taken into
consideration that the Commercial Television Company was the sole entity responsible for the
broadcasting of commercials during programmes programmes broadcast nationally, which meant
that there were few other possibilities to reach the entire Swiss public with the proposed
advertisement.
In light of all these elements, the Court held unanimously that the refusal to broadcast VGT's
commercial could not be considered as necessary in a democratic society and that consequently
there had been a violation of Article 10 of the European Convention.
This judgment will become final in the circumstances set out in Article 44 of the Convention.
Within 3 months any party in the case may request a rehearing by the Grand Chamber of the
Court.
•
VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR 2001-VI.
IRIS 2001-7/2
82
European Court of Human Rights: Case of Ekin Association v. France
Dirk Voorhoof
In a judgment of 17 July 2001, the European Court of Human Rights analysed Section 14 of the
French Act on Freedom of the Press, 1881, from the perspective of Articles 10 and 14 of the
European Convention. This provision of the French Act empowers the Minister of the Interior to
impose a ban on the circulation or distribution of foreign publications. The Court noted that
Section 14 of the 1881 Act does not state the circumstances in which the power can be used. In
particular, there is no definition of the concept of "foreign origin" and no indication of the
grounds on which a publication could be banned. With regard to the banning in 1987 of the book
"Euskadi at war", published by the Basque cultural organisation Ekin, the Court was of the
opinion that the applicant had not been given the possibility to rely on an effective judicial
review to prevent the abuse of Section 14 of the French Freedom of the Press Act. According to
the Court, this provision also appeared to be in direct conflict with the actual wording of Article
10 § 1 of the European Convention, which provides that the rights recognised in that Article
subsist "regardless of frontiers". The Court ruled that a system of control on publications merely
based on their foreign origin is indeed to be considered as a kind of discrimination. Finally, the
Court held that the content of the book did not justify so serious an interference with the
applicant's freedom of expression as that constituted by the ban imposed by the French Minister
of the Interior. Besides the violation of Article 10 of the Convention, the Court also noted that
the total length of the proceedings, more than nine years, could not be considered "reasonable",
although the issue of the litigation was of particular importance. Consequently, there was also a
violation of Article 6 § 1 of the Convention.
Any party to the case may request a rehearing by the Grand Chamber of the Court within three
months.
•
Association Ekin v. France, no. 39288/98, ECHR 2001-VIII.
IRIS 2001-8/2
83
European Court of Human Rights: Case of Feldek v. Slovakia
Dirk Voorhoof
In a judgment of 12 July 2001, the European Court of Human Rights decided, by five votes to
two, that there had been a violation of Article 10 because of the conviction of a publicist who
had sharply criticised the Slovak Minister of Culture and Education. This is the second time in
only a short period that the Strasbourg Court has found a breach of the right to freedom of
expression in Slovakia (See also: Judgment by the European Court of Human Rights (Second
Section), Case of Marônek v. Slovakia, Application no. 32686/96 of 19 April 2001.
After the publication in 1995 of a statement in several newspapers referring to the "fascist past"
of the Minister of Culture and Education of the Slovak Republic, the author of this statement, Mr
Feldek, was convicted by the Supreme Court. The Court applied Articles 11 and 13 of the Slovak
Civil Code, which offer protection against the unjustified infringement of one's personal rights,
civil and human dignity. The statement was indeed considered as having a defamatory character
and Feldek was ordered to ensure the publication of the final judgment in five newspapers.
The judgment of the European Court of Human Rights recalls that there is little scope under
Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of
public interest and that the limits of acceptable criticism are wider as regards a politician as such
than as regards a private individual. Emphasising the promotion of free political debate as a very
important feature in a democratic society, the Court underlined that allowing broad restrictions
on political speech in individual cases would undoubtedly affect respect for freedom of
expression in general in the state concerned. In the Feldek case, the Court was satisfied that the
value judgment referring to the "fascist past" of the Slovak Minister of Culture was based on
information which was already known to the wider public. The Strasbourg Court refused to
subscribe to a restrictive definition of the term "fascist past", as such an interpretation could also
mean that a person participated in a fascist organisation, as a member, even if this was not
coupled with specific activities propagating fascist ideals. The Court of Human Rights reached
the conclusion that the Slovak Court of Cassation had not convincingly established any pressing
social need for putting the protection of the personal right of a public figure above the applicant's
right to freedom of expression and the general interest of promoting this freedom when issues of
public interest are concerned. As the interference complained of by Feldek was not necessary in
a democratic society, the Court found that there had been a violation of Article 10 of the
Convention.
months.
•
Feldek v. Slovakia, no. 29032/95, ECHR 2001-VIII.
IRIS 2001-8/3
84
European Court of Human Rights: Case of Perna v. Italy
Dirk Voorhoof
In its judgment of 25 July 2001, the European Court of Human Rights held unanimously that
there had been a violation of Article 10 on account of the applicant's conviction for alleging, by
means of symbolic expression, that a senior Italian judicial officer had sworn an oath of
obedience to the former Italian Communist Party.
The applicant, Giancarlo Perna, who is a journalist, published an article in the Italian daily
newspaper Il Giornale sharply criticising the communist militancy of a judicial officer, Mr G.
Caselli, who was at that time the public prosecutor in Palermo. The article raised in substance
two separate issues. Firstly, Perna questioned Caselli's independence and impartiality because of
his political militancy as a member of the Communist Party. Secondly, Caselli was accused of an
alleged strategy of gaining control of the public prosecutors' offices in a number of cities and the
use of the pentito (i.e. criminalturned-informer) T. Buscetta against Mr Andreotti, a former
Prime Minister of Italy. After a complaint by Caselli, Perna was convicted for defamation
pursuant to Articles 595 and 61 § 10 of the Criminal Code and Section 13 of the Italian Press
Act. Throughout the defamation proceedings before the domestic courts, the journalist was not
allowed to admit the evidence he sought to adduce. In 1999 Perna alleged a violation of Article 6
and Article 10 of the European Convention on Human Rights.
The refusal by the Italian Courts was not considered by the Strasbourg Court as a breach of
Article 6 § 1 and 3(d) of the Convention, which guarantee everyone charged with a criminal
offence the right to examine witnesses or to have witnesses examined on their behalf. The Court
was of the opinion that the applicant had not explained how evidence from the witnesses he
wished to call could have contributed any new information whatsoever to the proceedings.
After repeating the general principles of its case law on Article 10 of the Convention, the Court
emphasised the distinction that is to be made between facts and value judgments in order to
decide if there has been a breach of Article 10. The existence of facts can be demonstrated,
whereas the truth of value judgments is not susceptible of proof. The Court noted that the
criticism directed at the complainant had a factual basis that was not disputed, namely Caselli's
political militancy as a member of the Communist Party. By such conduct, a judicial officer
inevitably exposes himself to criticism in the press, which may rightly see the independence and
impartiality of the State legal service as a major concern of public interest. The Court agreed that
the terms chosen by Perna and the use of the symbolic image of the "oath of obedience" to the
Communist Party was hard-hitting, but it also emphasised that journalistic freedom covers
possible recourse to a degree of exaggeration or even provocation. According to the Court, the
conviction of Perna was a violation of Article 10 of the Convention as the punishment of a
journalist for such kinds of criticism of a member of the judiciary is not necessary in a
democratic society.
With regard, however, to Perna's assertions about the alleged strategy of gaining control over the
public prosecutors' offices in a number of cities and especially the use of the pentito Buscetta in
85
order to prosecute Mr Andreotti, the Court came to the conclusion that the conviction of Perna
was not in breach of Article 10 of the Convention. In contrast to the general criticism in the
impugned newspaper article, these allegations obviously amounted to the attribution of specific
acts to the complainant. As this part of the article did not mention any evidence or cite any
source of information, the Court considered that these allegations were not covered by the
protection of Article 10. Referring to the extremely serious character of such allegations against
a judicial officer, with a lack of factual basis, the Court came to conclusion that this part of
Perna's article indeed overstepped the limits of acceptable criticism.
months.
•
Perna v. Italy, no. 48898/99, 25 July 2001.
Editor’s note: This case was referred to the Grand Chamber, which returned its judgment
on 6 May 2003.
IRIS 2001-8/4
86
European Court of Human Rights: Case Thoma v. Luxembourg
Dirk Voorhoof
In a judgment of 29 March 2001, the European Court of Human Rights once again recognised
the importance of journalistic freedom in reporting on matters of public interest. Marc Thoma, a
radio journalist working for RTL, alleged that his civil conviction for making a defamatory
statement in a radio programme violated his right to freedom of expression. In that radio
programme, he reported on alleged fraudulent practices in the field of reafforestation work.
These allegations were based on an article published in the newspaper Tageblatt. Following legal
action by 63 Forestry Commission officials, the journalist was convicted of defamation by the
Luxembourg courts.
The European Court held unanimously that there had been a violation of Article 10 of the
European Convention on Human Rights. The Court recalled its general principles, emphasising
the important role of the press in a democratic society. Although the European Court recognised
that some of the applicant's remarks were very serious and that the officials of the Water and
Forestry Commission were indirectly identifiable, it noted at the same time that the issue raised
in the radio programme had been widely debated in the Luxembourg media and concerned a
problem of public interest.
In particular, the fact that Thoma had based his defamatory remarks on an article published by a
fellow journalist was a decisive element in this case. The European Court reiterated that
punishing a journalist for assisting in the dissemination of statements made by another person
would seriously hamper the contribution of the press to the discussion of matters of public
interest and should not be envisaged unless there were particularly strong reasons for doing so.
The Luxembourg courts had decided that a journalist who merely quoted from an article that had
already been published would only escape liability if he formally distanced himself from that
article. The European Court, however, is of the opinion that such a requirement for journalists to
distance themselves systematically and formally from the content of a quotation that might
defame or harm a third party was not reconcilable with the role of the press in providing
information on current events, opinions and ideas. The Court noted that the applicant had taken
the precaution of mentioning that he was quoting from a press article and that he had underlined
that this article contained some "strongly worded" allegations. The Court also took into
consideration the fact that the journalist had interviewed a third party, a woodlands owner, about
whether he thought that the allegations of fraud in the reafforestation sector were true. Under
these circumstances, the Court was not sufficiently convinced that the conviction of the applicant
was necessary in a democratic society in order to protect the reputation and rights of others.
•
Thoma v. Luxembourg, no. 38432/97, ECHR 2001-III.
IRIS 2001-9/1
87
European Court of Human Rights: Case Marônek v. Slovakia
Dirk Voorhoof
In a judgment of 19 April 2001, the Court also held that there had been a violation of Article 10
of the European Convention on Human Rights, this time in the case of Marônek v. Slovakia. In
1992, the daily newspaper Smena published an article on the problems experienced by Vladimir
Marônek with the allocation of a flat that was the property of a State-owned company. The
article stated that the flat allocated to Marônek had been unlawfully occupied by A., a public
prosecutor. It also criticised the fact that Marônek had no possibility of using the flat. A few
weeks later, the newspaper published an open letter written by Marônek, criticising the fact that
the flat which was at his disposal was occupied by A., emphasising again that A. was a public
prosecutor and adding: "[S]hould our newly-born democracy have such representatives of law, it
will not outlive its childhood and we can bury it right away". Marônek and the newspaper were
sued and convicted of defamation. Marônek alleged before the European Court that his right to
freedom of expression had been violated.
The European Court noted that the purpose of Marônek's open letter was not only to resolve his
individual problem, but also to urge others with a similar problem to take action. According to
the Court, he expressed the view, apparently in good faith, that the resolution of the issue was
important for strengthening the rule of law in a newly-born democracy. The open letter also
raised issues of public interest, capable of affecting housing policy at a period when State-owned
apartments were about to be denationalised. Taken as a whole, the statements of Marônek did not
appear to be excessive and most of the events on which he had relied had earlier been made
public in the Smena article. Futhermore, and most importantly, the European Court reached the
conclusion that the domestic courts lacked sufficient reasons to justify the relatively high amount
of compensation awarded to the claimants. According to the Court, there was no reasonable
relationship of proportionality between the measures applied and the legitimate aim pursued (the
protection of the rights and reputation of others). Accordingly, the Court held unanimously that
there had been a violation of Article 10.
•
Marônek v. Slovakia, no. 32686/96, ECHR 2001-III.
IRIS 2001-9/2
88
European Court of Human Rights: Case Bankovic and Others v. Belgium and Others
Dirk Voorhoof
On 19 December 2001, the European Court of Human Rights announced its decision on
admissibility in the case of Bankovic and Others v. Belgium and 16 Other Contracting States.
The application was brought by six citizens of the Federal Republic of Yugoslavia (FRY) and
concerned the bombing by the North Atlantic Treaty Organization (NATO) of the building of
Radio Televizije Srbije (Radio-Television Serbia, RTS) during the Kosovo crisis in April 1999.
The building was destroyed; 16 people were killed and 16 others were seriously injured. The
applicants, all family members of the deceased or themselves injured in the bombing,
complained that the bombardment of the RTS building violated not only Article 2 (right to life),
but also Article 10 of the European Convention on Human Rights (freedom of expression).
The Court, however, unanimously declared the application inadmissible as the impugned act is to
be considered as falling outside the jurisdiction of the respondent States. The Court came to the
conclusion that there was no jurisdictional link between the persons who were victims of the act
complained of and the respondent States. Accordingly, it was not satisfied that the applicants and
their deceased relatives were capable of coming withinthe jurisdiction of the respondent States
on account of the extra-territorial act in question. As to whether the exclusion of the applicants
from the respondent States' jurisdiction would defeat the ordre public mission of the Convention
and leave a regrettable vacuum in the Convention system of human rights protection, the Court's
obligation was to have regard to the special character of the Convention as a constitutional
instrument of European public order for the protection of individual human beings and its role
was to ensure the observance of the engagements undertaken by the Contracting States within
their legal space. The FRY clearly did not fall within this legal space and the Convention is not
considered to be designed for application throughout the world, even in respect of the conduct of
the Contracting States.
The Court concluded that the impugned action of the respondent States does not engage their
Convention responsibility and that the application could therefore be declared inadmissible.
•
Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001-XII.
IRIS 2002-1/2
89
European Court of Human Rights: Case of E.K. v. Turkey
Dirk Voorhoof
In 1994, E.K., the secretary of the Istanbul section of the Human Rights Association, was
convicted in two separate judgments by the State Security Court, which found that she had
expressed support for the activities of the PKK and that she had undermined the territorial
integrity and unity of the Turkish Nation. The first conviction related to an article by E.K.,
published in the Istanbul daily newspaper, Özgür Gündem, and entitled, "The world owes a debt
to the Kurdish people". The article contained the text of a lecture by E.K. at a conference held in
the Belgian Parliament. The article criticised the repressive approach of Turkish policy in
Kurdistan and the violation of human rights by the Turkish army. The second case concerned an
article in a book that was edited by E.K. The article described the situation in Turkish prisons.
The State Security Court sentenced E.K. to terms of two years' and of six months' imprisonment
and imposed substantial fines on her, pursuant to the Anti-terrorism Act.
The applicant complained that her conviction in relation to the publication of the book
constituted a violation of Article 7 (no punishment without law) and that both convictions
infringed Article 10 (freedom of expression) and Article 6 (fair trial) of the European Convention
on Human Rights and Fundamental Freedoms.
The Court unanimously declared the conviction in relation to the publication of the book to be an
infringement of Article 7 of the Convention, as according to Turkish law, prison sentences could
only be imposed on the editors of periodicals, newspapers and magazines - and not books. The
Court also unanimously declared that both convictions were in breach of Article 10 of the
Convention. The conviction in relation to the publication of the book applied a law which was no
longer applicable at the time of the conviction by the State Security Court. Hence this
interference by the Turkish public authorities was considered not to be prescribed by law. In
more general and principled terms, the Court also found a breach of Article 10, as the Court
emphasised once more the importance of freedom of expression, the role of the press in a
genuine democracy and the right of the public to be properly informed. According to the Court,
the impugned article published in Özgür Gündem did indeed sharply criticise the Turkish
authorities, but it did not contain any incitement to violence, hostility or hatred between citizens.
Nor was the conviction of the applicant as editor of the book to be considered "necessary in a
democratic society". The Court emphasised that the impugned article was rather to be seen as a
strong protest referring to a difficult political situation, and not as incitement to an armed
struggle. Finally, with regard to the alleged violation of Article 6, the Strasbourg Court attached
great importance to the fact that a civilian (lawyer, editor and human rights activist) had to
appear before a court composed, even if only in part, of members of the armed forces. Hence the
applicant could legitimately fear that because one of the judges of the State Security Court was a
military judge, it might allow itself to be unduly influenced by considerations which had nothing
to do with the nature of the case. In other words, E.K. had a legitimate cause and there were
objective reasons to doubt the independence and impartiality of the State Security Court, which
led to the finding of a violation of Article 6 of the Convention.
90
•
E.K. v. Turkey, no. 28496/95, 7 February 2002.
IRIS 2002-3/1
91
European Court of Human Rights: Three Violations of Article 10 by Austria
Dirk Voorhoof
In three judgments of 26 February 2002, all against Austria, the European Court of Human
Rights found a breach of Article 10 of the European Convention on Human Rights.
The first case (Unabhängige Initiative Informationsvielfalt v. Austria) concerned the publication
in the periodical TATblatt of a leaflet referring to "racist agitation" by the Freiheitliche Partei
Österreichs (Austrian Freedom Party, FPÖ). The text criticised the racist policy proposals of the
FPÖ and was followed by a list of addresses and telephone numbers of FPÖ members and
offices, with an invitation to the readers of TATblatt to call the FPÖ politicians and tell them
what they thought of them and their policy. The Austrian courts, following civil proceedings
initiated by the FPÖ leader, Jörg Haider, were of the opinion that the statement concerning racial
agitation was to be considered as an insult and went beyond the limits of acceptable criticism by
reproaching the plaintiff with a criminal offence. An injunction not to repeat the statement was
granted against the publisher of the magazine. The European Court, however, in its judgment of
26 February 2002, was of the opinion that the statement was to be situated in the context of a
political debate and that it contributed to a discussion on subject matters of general interest, such
as immigration and the legal status of aliens in Austria. The Court did not accept the
qualification of the statement on "racist agitation" as an untrue statement of fact and considered
the comment to be a value judgment, the truth of which is not susceptible of proof. In sum, the
Court unanimously concluded that it could not find sufficient reasons to prevent the publisher
from repeating the critical statement in question. For these reasons, the Court held that there had
been a violation of Article 10 of the Convention.
In a second case (Dichand and others v. Austria), the Austrian courts had issued an order to
retract and not to repeat some critical statements published in the Neue Kronen Zeitung. These
statements firmly criticised the strategies and interests of a politician-lawyer, Mr. Graff, who was
the defence lawyer of another media group. The European Court again disagreed with the
Austrian courts: according to the European Court, the impugned statements were value
judgments which had an adequate factual basis and represented a fair comment on issues of
general public interest. The Court accepted the criticism of Mr. Graff as a politician who was in a
situation where his business and political activities overlapped. It was recognised by the Court
that the statement contained harsh criticism in strong, polemical language. However, the Court
recalled its standard jurisprudence that Article 10 also protects information and ideas that offend,
shock or disturb. The Court unanimously came to the conclusion that the interference by the
Austrian authorities had violated Article 10 of the Convention.
In the third case (Krone Verlag GmbH & Co. KG v. Austria), the European Court of Human
Rights found that the Austrian courts had failed to take into account the essential function
fulfilled by the press in a democratic society and its duty to impart information and ideas on
matters of public interest. The case concerned the publication of an article, accompanied by
photographs of a politician who had allegedly received unlawful salaries. A permanent
injunction was granted by an Austrian court prohibiting the applicant company from publishing
92
the politician's picture in connection with the article in question or similar articles. According to
the Strasbourg Court, there was no valid reason why the newspaper should have been prevented
from publishing the picture, especially as the photographs did not disclose any details of the
private life of the politician concerned. The Court also referred to the fact that the picture of the
politician as a member of the Austrian Parliament was included on the Austrian Parliament's
Internet site. The interference with the newspaper's right to freedom of expression was therefore
not necessary in a democratic society. Accordingly, the Court held unanimously that there had
•
•
•
Unabhängige Initiative Informationsvielfalt v. Austria, no. 28525/95, ECHR 2002-I.
Dichand and Others v. Austria, no. 29271/95, 26 February 2002.
Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, 26 February 2002.
IRIS 2002-4/2
93
European Court of Human Rights: Case of De Diego Nafría v. Spain
Dirk Voorhoof
In 1997, Mariano de Diego Nafría, a former civil servant with the rank of inspector at the Bank
of Spain, was dismissed after he had written a letter to the Bank's inspectorate accusing the
Governor and other senior officials of the Bank of different kinds of irregularities. After the
Spanish Courts had confirmed the legitimate character of the dismissal of de Diego Nafría
because of the defamatory character of the letter, de Diego Nafría alleged a violation of Article
10 of the European Convention (freedom of expression) before the European Court of Human
Rights, submitting that the content of the letter reflected the truth and that the terms held to be
offensive were taken out of context.
The European Court, by five votes to two, held that there had been no violation of Article 10,
observing that the Spanish courts had pertinently and correctly weighed the conflicting interests
against each other before concluding that the applicant had overstepped the acceptable limits of
the right to criticise. The European Court was of the opinion that the judgment in which the
Madrid High Court had ruled that it was insulting to make serious and totally unsubstantiated
accusations against a number of directors of the Bank of Spain could not be considered
unreasonable or arbitrary.
In the dissenting opinion it was emphasised that this case is very similar to the case of Fuentes
Bobo v. Spain (see IRIS 2000-4: 2). In a judgment of 29 February 2000, the Court came to the
conclusion in that case that the dismissal of the applicant because of his criticism of the
management of the Spanish public broadcasting organisation, TVE, was to be considered a
breach of Article 10 of the Convention. According to the dissenting judges, the Court should
have taken the same approach in the instant case of de Diego Nafría. The dissenting judges
referred in particular to the fact that the letter was not made public, nor distributed to the media,
but was exclusively and directly addressed to the Bank's inspectorate. These observations and
arguments could not, however, dissuade the majority of the European Court from reaching the
conclusion that there had been no violation of Article 10 of the Convention, as the national
courts had not exceeded their margin of appreciation in penalising the applicant.
•
De Diego Nafría v. Spain, no. 46833/99, 14 March 2002.
IRIS 2002-5/1
94
European Court of Human Rights: Case of Gaweda v. Poland
Dirk Voorhoof
In 1993 and 1994, the Polish authorities refused to register two of Mr. Gaweda's periodicals. The
title of the first periodical was The Social and Political Monthly - A European Moral Tribunal,
while the second request concerned the registration of a periodical under the title Germany - a
Thousand year-old Enemy of Poland. Both requests for registration were dismissed by the Polish
courts, which considered that the name of a periodical should be relevant to its content, in
accordance with the 1984 Press Act and the Ordinance of the Minister of Justice on the
registration of periodicals. With regard to the first periodical, the Polish courts were of the
opinion that the proposed name implied that a European institution was supporting or publishing
the magazine, which was untrue and misleading. With regard to the second title, the courts
considered that the title was also in conflict with reality, in that it unduly concentrated on
negative aspects of Polish-German relations, thus giving an unbalanced picture of the facts.
In a judgment of 14 March 2002, the European Court of Human Rights reached the conclusion
that both refusals to register the title of a periodical magazine violated the applicant's freedom of
expression, as guaranteed by the European Convention on Human Rights. The European Court
did not consider the obligation to register a title of a newspaper or a magazine as such to be a
violation of Article 10 of the Convention. However, as the refusal of registration amounted to an
interference with the applicant's right to freedom of expression, this refusal must be in
accordance with Article 10 § 2 of the Convention, which means in the first place that the
interference with the freedom of expression of the applicant must be "prescribed by law".
Referring to Article 20 of the Press Act and Article 5 of the Ordinance on the registration of
periodicals, the Court was of the opinion that the applicable law was not formulated with
sufficient precision, as the terms used in the Law and in the Ordinance are ambiguous and lack
the clarity that one would expect in a legal provision of this nature. According to the Court, the
legal provisions suggest rather that registration could be refused where the request for
registration did not conform to the technical details specified in Article 20 of the Press Act. The
refusal to allow registration because of the allegedly misleading title is to be considered as
"inappropriate from the standpoint of freedom of the press".
The European Court also observed that in the present case, the domestic courts had imposed a
kind of prior restraint on "a printed media" in a manner which entailed a ban on publication of
entire periodicals on the basis of their titles. Such an interference would at least require a
legislative provision which clearly authorised the courts to do so. According to the European
Court, the interpretation given by the Polish courts to Article 5 of the Ordinance introduced new
criteria, which were not foreseeable on the basis of the text specifying situations in which the
registration of a title can be refused. Therefore, the Court was of the opinion that the nature of
the interference with the applicant's exercise of his freedom of expression was not "prescribed by
law" within the meaning of Article 10 § 2 of the Convention. Accordingly, the Court
unanimously concluded that there had been a violation of Article 10 of the Convention.
•
Gawęda v. Poland, no. 26229/95, ECHR 2002-II.
95
IRIS 2002-5/2
96
European Court of Human Rights: Case of Nikula v. Finland
Dirk Voorhoof
In 1996, Anne Nikula, a lawyer living in Helsinki, lodged an application against Finland with the
European Court of Human Rights, alleging that her freedom of expression had been violated by
her conviction for defamation for having criticised the public prosecutor in her own capacity as
defence counsel. In a memorial which the applicant read out before the court, the public
prosecutor, Mr. T., was criticised for "role manipulation and unlawful presentation of evidence".
After a private prosecution was initiated by Mr. T., Nikula was convicted in 1994 of public
defamation committed without better knowledge. The Supreme Court upheld the criminal
conviction in 1996, but restricted the sanction to the payment of damages and costs only.
In its judgment of 21 March 2002, the European Court of Human Rights reiterated that the
special status of Sciences lawyers gives them a central position in the administration of justice as
intermediaries between the public and the courts. Given the key role of lawyers in this field, it is
legitimate to expect them to maintain public confidence in the administration of justice.
However, the Court referred as well to the possibility that an interference with the counsel's
freedom of expression in the course of a trial could raise an issue under Article 6 of the
Convention with regard to the right of an accused client to receive a fair trial. According to the
Court, the "equality of arms" principle and more generally, the principle of a fair trial, militate in
favour of free and even forceful argumentation between the parties, although this should not lead
to unlimited freedom of expression for a defence counsel.
In evaluating the legitimacy of the applicant's conviction, the Court - referring to the Interights
Amicus Curiae report - reiterated the distinction between the role of the prosecutor as the
opponent of the accused, and that of the judge. This should provide increased protection for
statements whereby an accused person criticises a prosecutor, as opposed to verbally attacking
the judge or the court as a whole. The Court also noted that the applicant's submissions were
confined to the courtroom, as opposed to criticism of a judge or prosecutor voiced in the media.
More substantially, the Court underlined that the threat of an ex post facto review of a counsel's
criticism of the public prosecutor is difficult to reconcile with defence counsels' duty to defend
their clients' interests zealously. The assessment of a defence argument should not be influenced
by the potential chilling effect of a criminal sanction or an obligation to pay compensation for
harm suffered or costs incurred. According to the Court, it is only in exceptional cases that a
restrictioneven by way of a lenient criminal sanction - of a defence counsel's freedom of
expression can be accepted as necessary in a democratic society. In the Court's view, such
reasons were not shown to exist in the Nikula case. Therefore, the restriction on Ms. Nikula's
freedom of expression failed to answer any pressing social need. The Court held, by five votes to
two, that there had been a violation of Article 10 of the Convention.
•
•
Nikula v. Finland, no. 31611/96, ECHR 2002-II.
Amicus Curiae brief submitted to the European Court of Human Rights by Interights, the
International Centre for the Legal Protection of Human Rights, pursuant to Rule 61 of the
Rules of the Court, 26 March 2002.
97
IRIS 2002-6/1
98
European Court of Human Rights: Case of McVicar v. the United Kingdom
Dirk Voorhoof
In a judgment of 7 May 2002, the European Court of Human Rights ruled in a case in which the
defamation of a well-known sports figure was the central issue. In September 1995, an article
was published in the magazine, Spiked, in which the journalist John McVicar suggested that the
athlete Linford Christie used banned performance-enhancing drugs. Mr. Christie brought an
action in the High Court for defamation against McVicar. For the greater part of the proceedings,
McVicar represented himself as he could not afford to pay legal fees because of the nonavailability of legal aid for defamation actions. His defence was that the allegations made in the
article were true in substance and in fact. The trial judge, however, refused to admit the evidence
of two witnesses upon which McVicar wished to rely. The judge found that to allow both
witnesses to give evidence would have been unfair to Mr. Christie as he would not have had time
to call counter-evidence and further, he would only have been made aware of the details about
his alleged drugtaking when the witnesses would have taken the stand. In 1998, the jury found
that the article contained defamatory allegations and found that McVicar had not proved that the
article was substantially true. McVicar was ordered to pay costs and was made the subject of an
injunction preventing him from repeating the allegations.
McVicar lodged an application with the European Court alleging that the inability of a defendant
in a libel action to claim legal aid constituted a violation of Articles 6 para. 1 (fair trial) and 10
(freedom of expression and information) of the European Convention on Human Rights. He also
submitted that the exclusion of witness evidence at a trial, as well as the burden of proof which
he faced in pleading a defence of justification, the order for costs and the injunction restricting
future publication further violated Article 10 of the Convention.
The European Court was of the opinion that McVicar was not prevented from presenting his
defence to the defamation action effectively in the High Court, nor that the proceedings were
unfair by reason of his ineligibility for legal aid. The Court noted, inter alia, that the applicant
was a well-educated and experienced journalist who would have been capable of formulating a
cogent argument before the Court. Therefore, there had been no violation of Article 6 or of
As for the exclusion of evidence, the order to pay the costs arising from the defamation
proceedings and the injunction measure, the Court held that there had been no violation of
Article 10 either. The Court considered the potential consequences of the allegations made in the
article for an individual who had achieved fame and fortune purely as a result of his athletic
achievements to be very grave. The Court also emphasised that the offending article in itself
made no mention of any authoritative basis for the drug-taking allegation. For those reasons, the
Court held unanimously that there had been no violation of Article 10 of the Convention either.
•
McVicar v. the United Kingdom, no. 46311/99, ECHR 2002-III.
IRIS 2002-7/3
99
European Court of Human Rights: Case of Colombani (Le Monde) v. France
Dirk Voorhoof
In a judgment of 25 June 2002, the European Court of Human Rights found a violation by France
of the right to freedom of expression. The case concerns the conviction of the publishing director
and of a journalist of the newspaper, Le Monde. Both had been convicted by the Court of Appeal
of Paris in 1997 for defamation of the King of Morocco, Hassan II.
In its issue of 3 November 1995, Le Monde published an article about a confidential version of a
report by the Geopolitical Drugs Observatory (OGD) on drug production and trafficking in
Morocco. The report had been compiled at the request of the Commission of the European
Communities. The article, which was sub-headed, "A confidential report casts doubt on King
Hassan II's entourage", called into question the resolve of the Moroccan authorities, and
principally the King, in combatting the increase in drug-trafficking on Moroccan territory. At the
request of the King of Morocco, criminal proceedings were brought against Le Monde. Mr.
Colombani, the publishing director, and Mr. Incyan, the journalist who wrote the article, were
convicted by the Paris Court of Appeal under section 36 of the Law of 29 July 1881 for insulting
a foreign head of state. According to the Court, the journalist had failed to check the allegations
and the article was considered to have been inspired by malicious intent.
The European Court, however, did not agree with these findings, emphasising in the first place
that when contributing to a public debate on issues that raised legitimate concerns, the press had
- in principle - to be able to rely on official reports without being required to carry out its own
separate investigations. The Strasbourg Court also referred to other French case-law which was
inclined to recognise that the offence under section 36 of the Law of 29 July 1881 infringed
freedom of expression as guaranteed by Article 10 of the European Convention. Recent French
jurisprudence itself appears to accept that this provision and its application were not necessary in
a democratic society, particularly since heads of state or ordinary citizens who have been the
target of insulting remarks or whose honour or reputation has been harmed, have an adequate
criminal remedy in recourse to a prosecution for defamation. The special status for heads of
states that derogated from the general law could not be reconciled with modern practice and
political conceptions. In the Court's view, such a privilege went beyond what was necessary in a
democratic society. The Court therefore found that, owing to the special nature of the protection
afforded by the relevant provision of the Law on Freedom of the Press of 1881, the offence of
insulting foreign heads of state was liable to infringe freedom of expression without meeting a
"pressing social need". For these reasons, the Court held unanimously that there had been a
violation of Article 10 of the Convention.
•
Colombani and Others v. France, no. 51279/99, ECHR 2002-V.
IRIS 2002-9/1
100
European Court of Human Rights: Case of Wilson & the NUJ v. the United Kingdom
Dirk Voorhoof
In a judgment of 2 July 2002, the European Court of Human Rights found a violation by the
United Kingdom of the right to freedom of assembly and association (Article 11 of the European
Convention). The case concerns the use of financial incentives to induce employees to relinquish
the right to union representation for collective bargaining. The case is especially interesting for
the media sector, as it was brought before the Court of Human Rights jointly by David Wilson, a
journalist working for the Daily Mail and by the National Union of Journalists (NUJ). Other
applications by members of the National Union of Rail, Maritime and Transport Workers were
later joined to this initial application by Wilson and the NUJ.
The case goes back to 1989 when Associated Newspapers Limited gave notice of its intention to
de-recognise the NUJ and to terminate all aspects of collective bargaining. It also signalled that
personal contracts were to be introduced with a 4.5% pay increase for journalists who signed and
accepted the de-recognition. Wilson applied to the domestic courts, contesting the legality of the
requirement to sign the personal contract and lose union rights, or accept a lower pay rise. After
the House of Lords held that the collective bargaining over employment terms and conditions
was not a sine qua non of union membership, Wilson and the NUJ lodged applications in
Strasbourg, alleging that the law of the United Kingdom, by allowing the employer to derecognise trade unions, failed to uphold their right to protect their interests through trade union
representation and their right to freedom of expression, contrary to Articles 11 and 10 (and also
in conjunction with Article 14 of the Convention (non-discrimination)).
With regard to Article 11, the Court is of the opinion that the absence in UK law of an obligation
on employers to enter into collective bargaining did not give rise, in itself, to a breach of Article
11 of the Convention. However, the Court took the view that allowing employers to use financial
incentives to induce employees to relinquish important union rights constituted a violation of
Article 11. The Court referred to the fact that this feature of domestic law has been criticised by
the Social Charter's Committee of Independent Experts and the International Labour
Organisation's Committee on Freedom of Association. According to the Court, it is the State's
responsibility to ensure that trade union members were not prevented or restrained from using
their union to represent them in attempts to regulate their relations with their employers. The
Court concluded that the United Kingdom had failed in its positive obligation to secure the
enjoyment of the rights guaranteed under Article 11 of the Convention.
As the Court considered that no separate issue arose under Article 10 of the Convention that had
not already been dealt with in the context of Article 11, it held that it was not necessary to
examine the complaint from the perspective of Article 10. The Court also found that it was
unnecessary to consider the complaint raised under Article 14 of the Convention.
•
Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96,
30671/96 and 30678/96, ECHR 2002-V.
101
IRIS 2002-9/2
102
European Court of Human Rights: Yagmurdereli v. Turkey and Seher Karatas v. Turkey
Dirk Voorhoof
In two recent judgments, the European Court of Human Rights again found violations of the
right to freedom of expression in Turkey.
The case of Esber Yagmurdereli concerns an application arising out of a sentence of ten months'
imprisonment. The applicant, a lawyer, writer and doctor of philosophy, had given a speech at a
meeting in 1991, in which he referred to Kurdistan as a part of the National Territory and to the
terrorists acts carried out by the PKK as "a struggle for democracy and freedom". In 1994, he
was convicted by the National Security Court for infringement of the anti-terrorist law: the
content of his speech was considered to amount to separatist propaganda aimed at undermining
the territorial integrity of the State and national unity.
The case of Seher Karatas concerns the conviction of the applicant, who was the publisher and
editor of a fortnightly magazine, Gençligin Sesi ("The Voice of Youth"). After the publication of
an article, which urged young people to unite with the working-class and which criticised the
actual political system as heading towards instability and crisis, Ms. Karatas was charged with
inciting the people to hatred and hostility, contrary to Article 312 of the Turkish Criminal Code.
The National Security Court found Karatas guilty of this offence and imposed a fine and a term
of imprisonment of one year and eight months, with the prison sentence being converted into a
fine.
In both cases, the European Court recognised the sensitivity of the security situation in south-east
Turkey and referred to the need for the authorities to fight against terrorism and to be vigilant in
repressing acts liable to increase violence. That is why the Court held that the interferences with
the applicants' freedom of expression pursued legitimate aims of protecting national security and
territorial integrity and preventing disorder and crime.
However, in both cases, the Court found that the applicants' comments had taken the form of a
political speech, emphasising that the European Convention allowed very few restrictions on
freedom of expression in the sphere of political speech or questions of general interest. The
Court also noted that the Turkish authorities had not pointed to any passages containing a
vindication of acts of terrorism, an incitement to hatred between citizens or a call for violence or
bloody revenge. Accordingly, the Court concluded in both cases that the measures taken against
the applicants could not be deemed to be necessary in a democratic society and held that there
had been a violation of Article 10. The Court also found a violation of Article 6 para. 1, as both
applicants, as civilians, had not had a fair trial owing to the presence of a military judge on the
bench of the National Security Court.
•
•
Yağmurdereli v. Turkey, no. 29590/96, 4 June 2002.
Seher Karataş v. Turkey, no. 33179/96, 9 July 2002.
IRIS 2002-9/3
103
European Court of Human Rights: Case of Stambuk v. Germany
Dirk Voorhoof
In a judgment of 17 October 2002, the European Court of Human Rights came to the conclusion
that a disciplinary action imposed on a doctor for disregarding a ban on advertising by medical
practitioners by giving an interview to the press was to be considered a breach of Article 10 of
the European Convention on Human Rights.
In 1995, a fine was imposed on the applicant, an ophthalmologist, by a district Disciplinary
Court for Medical Practitioners. An article in a newspaper, including an interview with, and a
photograph of, Mr. Stambuk was considered as disregarding a ban on advertising by medical
practitioners. The interview in which Mr. Stambuk explained the successful treatment with a new
laser technique that he applied was seen as a kind of self-promotion, in breach of the [BadenWürttemberg] Rules of Professional Conduct of the Medical Practitioners' Council. According to
section 25(2) of this Code, a medical practitioner should not allow pictures or stories which have
an advertising character, indicate the name or show a photograph, to be published in respect of
his/her professional activities. According to section 27, the cooperation of a medical practitioner
in informative publications in the press is only permissible if these publications are limited to
objective information, without the practitioner being presented in the form of an advertisement.
The Disciplinary Appeals Court for Medical Practitioners upheld the sanction, taking into
account that Mr. Stambuk had not only allowed an article which would go beyond objective
information on a particular operation technique to be published, but had deliberately acted so as
to give prominence to his own person.
The European Court of Human Rights recognised that restrictions on advertising by medical
practitioners in the exercise of their liberal profession have a legitimate aim in protecting the
rights of others or to protect health. However, the question of whether, in casu, a disciplinary
action was necessary in a democratic society, was answered in the negative by the European
Court. The Court recalled that, for the citizen, advertising is a means of discovering the
characteristics of services and goods offered. The Court recognised that owing to the special
circumstances of particular business activities and professions, advertising or commercial speech
may be restricted. The Court also accepted that the general professional obligation on medical
practitioners to care for the health of each individual and for the community as a whole might
indeed explain restrictions on their conduct, including rules on their public communications or
participation in public communications on professional issues. These rules of conduct in relation
to the press are, however, to be balanced against the legitimate interest of the public in
information and are limited to preserving the good functioning of the profession as a whole.
They should not be interpreted as putting an excessive burden on medical practitioners to control
the content of press publications, while also taking into account the essential function fulfilled by
the press in a democratic society by imparting information and ideas on all matters of public
interest.
According to the Court, the article with the interview and a photo of Mr. Stambuk on the whole
presented a balanced explanation of the specific operation technique, inevitably referring to the
104
applicant's own experience. The article may well have had the effect of giving publicity to Mr.
Stambuk and his practice, but, having regard to the principal content of the article, this effect
proved to be of a secondary nature. According to the Court, the interference complained of by
Mr. Stambuk did not achieve a fair balance between the interests at stake, namely the protection
of health and the interests of other medical practitioners and Mr. Stambuk's right to freedom of
expression and the vital role of the press. In sum, there was a breach of Article 10 of the
Convention.
•
Stambuk v. Germany, no. 37928/97, 17 October 2002.
IRIS 2002-10/3
105
European Court of Human Rights: Cases of Ayse Öztürk v. Turkey and Karakoç and
Others v. Turkey
Dirk Voorhoof
With the adoption of friendly settlements in the cases of Altan v. Turkey on 14 May 2002 (see
IRIS 2002-7: 2-3), Ali Erol v. Turkey on 20 June 2002, Özler v. Turkey on 11 July 2002, Sürek
(no. 5) v. Turkey on 16 July 2002 (see IRIS 2002-9: 4) and Mehmet Bayrak v. Turkey on 3
September 2002 (see IRIS 2002-10: 3), several violations of the right to freedom of expression
were recognised by the Turkish authorities. In two recent cases, the European Court of Human
Rights again came to the conclusion that Article 10 of the European Convention on Human
Rights had not been respected by the Turkish authorities.
In the case of Ayse Öztürk, the Court was asked to decide on the alleged violations of the right to
freedom of expression after various seizures in 1994 of the fortnightly review Kizil Bayrak ("The
Red Flag"), of which Ayse Öztürk was the owner and editor-in-chief at that time. The applicant
was sentenced to imprisonment and fines, with these sentences being suspended for three years.
The impugned articles published in the review were considered to amount to inciting hostility
and hatred based on a distinction according to race or ethnic origin, or separatist propaganda.
The seizures and convictions were based on Article 28 of the Constitution, Articles 36 para. 1, 86
and 312 of the Criminal Code and Article 8 para. 1 of the Prevention of Terrorism Act.
In its judgment of 15 October 2002, the Court, without underestimating the difficulties inherent
in the fight against terrorism and referring to the security situation in south-east Turkey, came to
the conclusion that the seizures of the review and the conviction of the applicant could not be
considered as "necessary in a democratic society". The Court especially emphasised that none of
the impugned articles constituted an incitement to violence and that the comments in those
articles took the form of political speech. As regards the fact that the sentences were suspended,
the Court was of the opinion that such measures were tantamount to a ban on the applicant
exercising her profession, as it required her to refrain from criticising the government or other
authorities in a way that could be considered contrary to the interests of the State. This measure
restricted her ability to express ideas, notably regarding the Kurdish Issue, that were part of a
public debate and forced her to restrict her freedom of expression - as a journalist - to ideas that
were generally accepted or regarded as inoffensive or as a matter of indifference. According to
the Court, the measures in question were to be considered a violation of Article 10 of the
Convention.
In the case of Karakoç and others, the applicants, two trade union leaders and a representative of
a newspaper, complained of an infringement of their right to freedom of expression after they
had been convicted for committing the offence of separatist propaganda under Article 8 of the
Prevention of Terrorism Act. The applicants were sentenced to several months' imprisonment in
1994 because of the publication of a statement in the press criticising the policy of the Turkish
authorities in southeast Turkey and in which reference was made to "massacres and extrajudicial
executions". Taking into consideration the essential role of the press and its role of public
watchdog, the applicants were considered to have alerted public opinion to concrete acts that
106
were liable to infringe fundamental rights. The statement of the applicants was therefore
considered as political speech by representatives of unions and the press, criticising the policy of
the government, without inciting to violence or terrorism. Consequently, the Court held that there
had been a violation of Article 10, as the applicants' sentences were disproportionate to the aims
pursued and not necessary in a democratic society. The Court also found (once more) a breach of
Article 6 para. 1 of the Convention, as civilians accused of terrorist offences should not be tried
by a court that includes a military judge: this indeed constituted a legitimate ground for fearing
bias on the part of the court in the instant case.
•
•
Ayşe Öztürk v. Turkey, no. 24914/94, 15 October 2002.
Karakoç and Others v. Turkey, nos. 27692/95, 28138/95 and 28498/95, 15 October 2002.
IRIS 2002-10/4
107
European Court of Human Rights: Case of Demuth v. Switzerland
Dirk Voorhoof
In 1997, Mr. Demuth complained to the European Court of Human Rights that the decision of
the Swiss Bundesrat (Federal Council) refusing to grant Car Tv AG a broadcasting licence for
cable television ran counter to Article 10 of the European Convention on Human Rights
(freedom of expression). He considered that the refusal was arbitrary and discriminatory. In a
decision of 16 June 1996, the Federal Council had decided that there was no right, either under
Swiss law or under Article 10 of the European Convention, to obtain a broadcasting licence.
With reference to the instructions for radio and television listed in Section 3 § 1 and Section 11 §
1 (a) of the Bundesgezetz über Radio und Fernsehen (Radio and Television Act - RTA), the
Federal Council was of the opinion that the orientation of the programme content of Car Tv AG
was not able to offer the required valuable orientation to comply with the general instructions for
radio and television, as the programme focused mainly on entertainment and reports about
automobiles.
In its judgment of 5 November 2002, the European Court confirmed its earlier case-law that the
refusal to grant a broadcasting licence is to be considered as an interference with the exercise of
the right to freedom of expression, namely the right to impart information and ideas under
Article 10 para. 1 of the Convention. The question is whether such an interference is legitimate.
According to the third sentence of Article 10 para. 1, Member States are permitted to regulate by
means of a licensing system the way in which broadcasting is organised in their territories,
particularly in its technical aspects. It remains to be determined, however, whether the manner in
which the licensing system is applied satisfies the relevant conditions of paragraph 2 of Article
10.
The Court was of the opinion that the relevant provisions of the licensing system of the RTA
were capable of contributing to the quality and balance of programmes. This was considered a
sufficient legitimate aim, albeit not directly corresponding to any of the aims set out in Article 10
para. 2. The Court also referred to the particular political and cultural structures in Switzerland
that necessitate the application of sensitive political criteria such as cultural and linguistic
pluralism and a balanced federal policy. The Court saw no reason to doubt the validity of these
considerations, which are of considerable importance for a federal State. Such factors, which
encourage in particular pluralism in broadcasting may legitimately be taken into account when
authorising radio and television broadcasts. The Court came to the conclusion that the Swiss
Federal Council’s decision, guided by the policy that television programmes shall to a certain
extent also serve the public interest, did not go beyond the margin of appreciation left to national
authorities in such matters. The Court also observed that the refusal to grant the requested licence
was not categorical and did not exclude a broadcasting licence once and for all. Although the
Court explicitly recognised that opinions may differ as to whether the Federal Council’s decision
was appropriate and whether the broadcasts should have been authorised in the form in which the
request was presented, the Court reached the conclusion that the restriction of the applicant’s
freedom of expression was necessary in a democratic society. The Court took special note of the
Government’s assurance that a licence would indeed be granted to Car Tv AG if it included
108
cultural elements in its programme. The Court considered it unnecessary to examine the
Government’s further ground of justification for refusing the licence, contested by the applicant,
namely that there were only a limited number of frequencies available on cable television. By 6
votes to 1, the Court reached the conclusion that there had been no violation of Article 10 of the
Convention. The dissenting opinion of Judge G. Jörundsson is annexed to the judgment.
•
Demuth v. Switzerland, no. 38743/97, ECHR 2002-IX.
IRIS 2003-1/2
109
European Court of Human Rights: New Violations of Freedom of Political Expression in
Turkey
Dirk Voorhoof
In two recent judgments, the European Court of Human Rights has come to the conclusion that
freedom of political expression has been violated in Turkey.
In the case of Yalçin Küçük v. Turkey, the Court was of the opinion that the confiscation of
copies of a book and the applicant's sentence to one year's imprisonment and a fine of TRL 100
million was an illegitimate infringement by the authorities of the right to freedom of expression.
Kü ç ük was convicted for separatist propaganda as the book he had published contained an
interview with Abdullah Öcalan, the PKK leader. The book referred to the Kurdish separatist
movement and to the programme for Kurdish cultural autonomy. In its judgment of 5 December
2002, the European Court of Human Rights recognised the need for the authorities to be alert to
acts capable of fuelling additional violence in the region of south-east Turkey, but the Court
found at the same time that the book did not constitute an incitement to violence, armed
resistance or an uprising. The Court was also of the opinion that by confiscating copies of the
book and convicting its author, the Turkish judicial authorities had failed to have sufficient
regard to the general public's right to receive alternative forms of information and to assess the
situation in south-east Turkey. Taking into account as well the nature and severity of the
sentences imposed on the applicant, the interference with the applicant's right to freedom of
expression was regarded as a breach of Article 10 of the European Convention on Human Rights.
In the case of Dicle on behalf of the Democratic Party (DEP) v. Turkey, the Court was asked to
decide on an alleged breach of Article 9 (freedom of thought, conscience and religion), Article
10 (freedom of expression) and Article 11 (freedom of assembly and association) of the
European Convention. The applicant alleged that the order of the Turkish Constitutional Court to
dissolve the DEP, on the ground that its activities were liable to undermine the territorial
integrity of the State and the unity of the nation, was a breach of several articles of the
Convention. In its judgment of 10 December 2002, the European Court of Human Rights noted
that the written declarations and the speeches of the leaders of the DEP that had led to the
dissolution of the party were indeed fiercely critical of government policy towards citizens of
Kurdish origin. However, the Court did not find those declarations and speeches to be contrary to
fundamental principles, nor had the Constitutional Court established in accordance with the
requisite standard that the DEP was seeking to undermine democracy in Turkey. Although one
declaration made by the former president of the DEP in Iraq amounted to approval of the use of
vio Media Law Section of the Communication Sciences Department Ghent University lence as a
political tool, the Court was of the opinion that a single speech by a former leader of the party
that had been made in another country, in a language other than Turkish and to an audience that
was not directly concerned, could not be considered a sufficient reason to dissolve a political
party. Consequently, the Court held that the dissolution of the DEP could not be regarded as
"necessary in a democratic society" and therefore there had been a violation of Article 11. The
Court considered it unnecessary to examine the case from the perspective of Articles 9 and 10, as
the complaints concerned the same matters as those examined under Article 11.
110
•
•
Yalçın Küçük v. Turkey, no. 28493/95, 5 December 2002.
Dicle for the Democratic Party (DEP) of Turkey v. Turkey, no. 25141/94, 10 December
2002.
IRIS 2003-3/1
111
European Court of Human Rights: Case of A. v. United Kingdom
Dirk Voorhoof
Although the case of A. v. United Kingdom is not an Article 10 case, the judgment of the
European Court of Human Rights of 17 December 2002 can be considered as an important
confirmation of the principle of freedom of speech and political debate. The case concerns the
question of whether the statements of a Member of Parliament (MP) in the House of Commons
are protected by parliamentary privilege under Article 9 of the Bill of Rights 1689. During a
parliamentary debate on housing policy in 1996, an MP made offensive and derogatory remarks
about the behaviour of A. and her children. The MP called the family of A. "neighbours from
hell", a phrase which was also quoted in the newspapers. Following the MP's speech and hostile
reports in the press, A. received hate-mail addressed to her and she was also stopped in the street
and subjected to offensive language. A. was re-housed by the housing association as a matter of
urgency and her children were obliged to change schools. A letter of complaint to the relevant
MP (which was forwarded to the Office of the Parliamentary Speaker) and a letter to the then
Prime Minister, Mr. John Major, did not result in effective measures being taken against the MP.
A. was informed about the absolute character of parliamentary privilege.
In Strasbourg, the applicant complained that the absolute nature of the privilege that protected
statements about her made by the MP in Parliament violated, in particular, her right of access to
the courts under Article 6 para. 1 of the European Convention. The European Court of Human
Rights recognised the legitimate aim of protecting free speech in Parliament and maintaining the
separation of powers between the legislature and the judiciary. The Court emphasised that in a
democracy, Parliament or such comparable bodies are the essential fora for political debate. The
Court was of the opinion that the absolute immunity enjoyed by MPs is designed to protect the
interests of Parliament as a whole, as opposed to those of individual MPs: "in all the
circumstances of this case, the application of a rule of absolute Parliamentary immunity cannot
be said to exceed the margin of appreciation allowed to States in limiting an individual's right of
access to court" (para. 87). The Court emphasised, however, that no immunity attaches to
statements made outside of Parliament, or to an MP's press releases, even if their content repeats
statements made during the parliamentary debate itself.
The judgment reads: "[T]he Court agrees with the applicant's submissions to the effect that the
allegations made about her in the MP's speech were extremely serious and clearly unnecessary in
the context of a debate about municipal housing policy. The MP's repeated reference to the
applicant's name and address was particularly regrettable. The Court considers that the
unfortunate consequences of the MP's comments for the lives of the applicant and her children
were entirely foreseeable. However, these factors cannot alter the Court's conclusion as to the
proportionality of the parliamentary immunity at issue [...]. There has, accordingly, been no
violation of Article 6 para. 1 of the Convention as regards the parliamentary immunity enjoyed
by the MP" (paras. 88 and 89). The absence of legal aid for defamation proceedings in the United
Kingdom was not considered to be a violation of Article 6 para. 1 of the Convention either. The
applicant was deemed to have had sufficient possibilities to bring defamation proceedings in
respect of the non-privileged press releases.
112
The Court also took into consideration the domestic law of the eight States that have made a
third-party intervention in the case. Each of these laws makes provision for such an immunity,
although the precise details of the immunities concerned vary. The Court believed that the rule of
parliamentary immunity, which is consistent with - and reflects - generally-recognised rules
within the signatory States, the Council of Europe and the European Union, cannot in principle
be regarded as imposing a disproportionate restriction on the right of access to the courts, as
embodied in Article 6 para. 1. The Court found no violation of Article 8 (right to respect for
private and family life), Article 13 (right to an effective remedy) or Article 14 (prohibition of
discrimination).
•
A. v. the United Kingdom, no. 35373/97, ECHR 2002-X.
IRIS 2003-3/2
113
European Court of Human Rights: Case of Roemen and Schmit v. Luxembourg
Dirk Voorhoof
At the origin of this case lies an article in the Lëtzëbuerger Journal in which Robert Roemen
reported that a Minister was convicted of tax evasion, commenting that such conduct was all the
more shameful coming from a public person who should set an example. The article reported that
the Minister had been ordered to pay a tax fine of LUF 100.000 (nearly EUR 2.500). This
information was based on an internal document that was leaked from the Land Registry and
Land Property Office. The Minister lodged a criminal complaint and an investigation was opened
in order to identify the civil servant(s) who had handled the file under a breach of confidence.
Apart from carrying out searches at the journalist's home and workplace, the investigative judge
also ordered a search of the office of the journalist's lawyer. Several applications lodged both by
Roemen and Schmit because of the alleged violation of the protection of journalistic sources and
the breach of confidentiality between the lawyer and her client (right of privacy) were dismissed.
Finally, after the exhaustion of all domestic remedies, Roemen and Schmit lodged an application
with the European Court of Human Rights.
The Court came to the conclusion that the searching of the journalist's home and office is to be
considered as a violation of Article 10 of the European Convention on Human Rights.
Confirming its case law, the Court considered that "having regard to the importance of the
Belgium protection of journalistic sources for press freedom in a democratic society and the
potentially chilling effect an order of source disclosure has on the exercise of that freedom, such
a measure cannot be compatible with Article 10 of the Convention, unless it is justifiable by an
overriding requirement in the public interest" (see also ECourtHR 27 March 1996, Goodwin v.
United Kingdom, par. 39 - see IRIS 1996-4: 5). The Court recognised that the searches carried
out in the journalist's home and place of work were prescribed by law and pursued the legitimate
aim of maintaining the public order and preventing crime. However, because the article had
discussed a matter of general interest, the search interferences could not be compatible with
Article 10 of the Convention unless they were justified by an "overriding requirement in the
public interest". The Court was of the opinion that the Luxembourg authorities had not shown
that the balance between the interests at stake had been preserved. The Court underlined that the
search warrant gave the investigative officers very wide powers to burst in on a journalist at his
place of work and gave them access to all the documents in his possession. The reasons adduced
by the Luxembourg authorities could not be regarded as sufficient to justify the searches of the
journalist's home and place of work. Therefore the Court came to the conclusion that the
investigative measures at issue had been disproportionate and had infringed Roemen's right to
freedom of expression.
The judgment also confirmed the Court's case law on the point that, in principle, the
confidentiality of communication between a lawyer and his or her client falls under the
protection of privacy as guaranteed by Article 8 of the Convention (see also ECourtHR 16
December 1992, Niemietz v. Germany). The Court considered that the search carried out by the
Luxembourg judicial authorities at the lawyer's office and the seizure of a document had
amounted to an unacceptable interference with her right to respect for her private life, and hence
114
amounted to a violation of Article 8 of the Convention. The Court emphasised that the search
carried out at Ms Schmit's office clearly amounted to a breach of the journalist's source through
the intermediary of his lawyer. The Court held that the search had therefore been
disproportionate to the legitimate aims pursued, particularly in view of the rapidity with which
the search order had been carried out.
•
Roemen and Schmit v. Luxembourg, no. 51772/99, ECHR 2003-IV.
IRIS 2003-5/2
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European Court of Human Rights: Case of Peck v. United Kingdom
Dirk Voorhoof
In the case of Peck v. United Kingdom the applicant complained about the disclosure to the
media of closed circuit television (CCTV) footage, which resulted in images of him being
published and broadcast widely. The local authority operating the CCTV system, the Brentwood
Borough Council, had released the images to the media with the aim of promoting the
effectiveness of the system in the detection and the prevention of crime. Extracts of the footage,
inter alia, were included in an Anglia Television news programme and in the BBC programme
"Crime Beat". The masking was considered inadequate by the Independent Television
Commission (ITC) and the Broadcasting Standards Commission (BSC) as neighbours,
colleagues, friends and family who saw the programmes recognised the applicant. The judicial
authorities in the United Kingdom, on the other hand, did not consider that the disclosure of the
CCTV material was a breach of the applicant's right to privacy under Article 8 of the European
Convention.
The European Court of Human Rights, however, is of the opinion that the disclosure of the
images to the media resulted in a breach of Article 8 of the Convention. The Court emphasises
that the applicant was in a public street but that he was not there for the purposes of participating
in any public event, nor was he a public figure. The image of the applicant was shown in the
media, including the audio-visual media, which are commonly acknowledged as having "often a
much more immediate and powerful effect than the print media". As a result, the Court considers
that the unforeseen disclosure by the Council operating the CCTV system of the relevant footage
constituted a serious interference with the applicant's right to respect for his private life. The
Court also comes to the conclusion that the disclosure was not "necessary in a democratic
society". Although the Court recognises that the CCTV system plays an important role in
detecting and preventing crime and that this role is rendered more effective and successful
through advertising the CCTV system and its benefits, the Council had other options available to
achieve these objectives. The Council could have taken steps to obtain the applicant's prior
consent to disclosure, it could have itself masked the images before making them available to the
media, or it could have taken the utmost care in ensuring that the media to which the disclosure
was made masked the images. The Court notes that the Council did not explore the first or
second options and considers that the steps taken in respect of the third option were inadequate.
The Court is of the opinion that the Council should have demanded written undertakings from
the media to mask the images, a requirement that would have emphasised the need to maintain
confidentiality. As such, the disclosure constituted a disproportionate and therefore unjustified
interference with the private life of the applicant and a violation of Article 8 of the Convention.
With regard to the applicant's complaint that he had no effective domestic remedy to have his
right to privacy protected in the United Kingdom, it is interesting to underline that the European
Court is of the opinion that the power of the BSC and the ITC is not sufficient to consider the
procedures before these bodies as an effective remedy, as they cannot make monetary
compensation available to an aggrieved individual who may have been injured by an
infringement of the relevant broadcasting regulation. Neither did the Court accept the
Government's argument that any acknowledgment of the need to have a remedy would
116
undermine the important conflicting rights of the press as guaranteed by Article 10 of the
Convention, as the media could have achieved their objectives by properly masking the
applicant's identity. Accordingly there has also been a violation of Article 13 of the Convention
(right to effective remedy before a national authority).
•
Peck v. the United Kingdom, no. 44647/98, ECHR 2003-I.
IRIS 2003-6/2
117
European Court of Human Rights: Cordova no. 1 and Cordova no. 2 v. Italy
Dirk Voorhoof
In two judgments of 30 January 2003, the European Court of Human Rights made a restrictive
application of defamatory and insulting allegations expressed by two Members of Parliament. In
the case of Cordova no. 1, the senator and former Italian president, Francesco Cossiga, had
insulted by way of some sarcastic letters a public prosecutor, Mr. Cordova, while in the case of
Cordova no. 2, the same public prosecutor had been criticised in very offensive terms by a
member of the Italian parliament, Mr. Vittorio Sgarbi. In both cases Mr. Cordova lodged a
criminal complaint because of these insulting and defamatory statements. In the case of Cordova
no. 1, the Italian Senate considered that the acts of which Mr. Cossiga was accused were covered
by parliamentary immunity, as his opinions had been expressed in the performance of his
parliamentary duties. In the case of Cordova no. 2, the Court of Cassation accepted also the
immunity of Mr. Sgarbi, referring to the decision of the Italian Chamber of Deputies interpreting
the concept of "parliamentary duties" as encompassing all acts of a political nature, even those
performed outside Parliament. These findings made it impossible to continue the proceedings
that were under way and deprived Cordova of the opportunity to seek compensation for the
damages he alleged he had sustained.
The European Court of Human Rights, however, is of the opinion that the decisions applying
parliamentary immunity to Mr. Cossiga's and Mr. Sgarbi's acts constituted a violation of Article
6 of the Convention (right to a fair trial right of access to a court). The European Court,
affirming its approach developed in the case of A. v. United Kingdom (ECourtHR 17 December
2002, see IRIS 2003-3: 3), accepts that a State affords immunity to Members of its Parliament, as
this principle constitutes a long-standing practice designed to ensure freedom of expression
among representatives of the people and to prevent the possibility of politically-motivated
prosecutions, interfering with the performance of parliamentary duties. Hence, the restriction on
the applicant's right to a fair trial pursued the legitimate aims of protecting free speech in
parliament and maintaining the separation of powers between the legislature and the judiciary. In
both the Cordova no. 1 and Cordova no. 2 cases, the European Court notes, however, that the
statements by Mr. Cossiga and Mr. Sgarbi were not related to the performance of their
parliamentary duties in the strict sense, but appeared to have been made in the context of
personal disputes. According to the Strasbourg Court, a denial of access to a court cannot be
justified solely on the ground that the dispute might have a political character or might relate to
political activity. The Court considers that the decisions that Mr. Cossiga and Mr. Sgarbi could
not be prosecuted for their alleged insulting or defamatory statements with regard to Mr.
Cordova, had upset the fair balance that should be struck between the demands of the general
interest of the community and the requirements of protection of the individual's fundamental
rights, such as the right to enjoy a good reputation and to have this enforced before an impartial
judge. The Court attaches importance to the fact that, after the relevant resolutions had been
passed by the Senate and the Chamber of Deputies, Mr. Cordova had no other reasonable
alternative means available for the effective protection of his rights under the Convention. The
Court accordingly held that there had been a violation of Article 6 of the Convention.
118
•
•
Cordova v. Italy (no. 1), no. 40877/98, ECHR 2003-I.
Cordova v. Italy (no. 2), no. 45649/99, ECHR 2003-I (extracts).
IRIS 2003-7/2
119
European Court of Human Rights: Case of Perna v. Italy
Dirk Voorhoof
In a judgment of 6 May 2003, the Grand Chamber of the European Court of Human Rights has
overruled the Court in the case of Perna v. Italy (see IRIS 2001-8: 3). While the Strasbourg Court
in 2001 had come to the conclusion that the conviction of the Italian journalist Giancarlo Perna
violated Article 10 of the Convention, the Grand Chamber has now reached the conclusion that
the conviction of the journalist for defamation was in accordance with the European Convention
on Human Rights.
The case goes back to an article published in the newspaper Il Giornale in which Perna sharply
criticised the communist militancy of a judicial officer, Mr. G. Caselli, who was at that time the
public prosecutor in Palermo. The article raised in substance two separate issues. Firstly, Perna
questioned Caselli's independence and impartiality because of his political militancy as a
member of the Communist Party (PCI). Secondly, Caselli was accused of a strategy of gaining
control of the public prosecutors' offices in a number of cities and of the manipulative use of a
pentito (criminal-turned-informer) against Mr. Andreotti (a former Italian prime minister). After
a complaint by Caselli, Perna was convicted for defamation in application of Articles 595 and 61
paragraph 10 of the Italian Criminal Code and Section 13 of the Italian Press Act. Throughout
the defamation proceedings before the domestic courts, the journalist was refused admittance of
the evidence he sought to adduce. In 1999 Perna alleged a violation of Article 6 and Article 10 of
the European Convention.
The refusal to allow the journalist to prove the truth of his statements before the Italian Courts
was not considered by the Strasbourg Court to be a breach of Article 6 paragraphs 1 and 3 (d) of
the Convention, which guarantee everyone charged with a criminal offence the right to examine
witnesses or to have witnesses examined on their behalf. The Court, in its judgment of 25 July
2001, was of the opinion that there were no indications that the evidence concerned could have
contributed any new information whatsoever to the proceedings. The Grand Chamber has now
confirmed this decision, emphasizing that it was not established that Perna's request to produce
evidence would have been helpful in proving that the specific conduct imputed to Caselli had
actually occurred.
With regard to Article 10 of the Convention, the Second Section of the European Court, in its
judgment of 25 July 2001, argued that the criticism directed at Caselli had a factual basis which
was not disputed, namely Caselli's political militancy as a member of the Communist Party. The
Court agreed that the terms chosen by Perna and the use of the symbolic image of the "oath of
obedience" to the Communist Party was hard-hitting, but it also emphasized that journalistic
freedom covers possible recourse to a degree of exaggeration or even provocation. According to
the Court, the conviction of Perna was a violation of Article 10 of the Convention, as the
punishment of a journalist for such kinds of criticism of a member of the judiciary was
considered not to be necessary in a democratic society. With regard, however, to Perna's
speculative allegations about the alleged strategy of gaining control over the public prosecutors'
offices in a number of cities and especially the use of the pentito Buscetta in order to prosecute
120
Mr. Andreotti, the Court came to the conclusion that the conviction of Perna was not in breach of
The Grand Chamber, in its judgment of 6 May 2003, has now come to the overall decision that
the conviction of Perna did not violate Article 10 at all. The Court focuses on the article's overall
content and its very essence, of which the unambiguous message was that Caselli had knowingly
committed an abuse of authority, notably connected with the indictment of Mr. Andreotti, in
furtherance of the alleged PCI strategy of gaining control of public prosecutors' offices in Italy.
The Court is of the opinion that Perna at no time tried to prove that the specific conduct imputed
to Caselli had actually occurred and that in his defence he argued, on the contrary, that he had
expressed critical judgments that there were no need to prove. According to the Grand Chamber
of the Court, the interference in Perna's freedom of expression could therefore be regarded as
necessary in a democratic society to protect the reputation of others within the meaning of
Article 10 paragraph 2 of the Convention.
•
Perna v. Italy [GC], no. 48898/99, ECHR 2003-V.
IRIS 2003-8/2
121
European Court of Human Rights: Case of Pedersen and Baadsgaard v. Denmark
Dirk Voorhoof
In Strasbourg, two journalists of Danmarks Radio (Danish national television) complained about
their conviction for defamation of a Chief Superintendent. The journalists, Pedersen and
Baadsgaard, had produced two programmes about a murder trial in which they criticised the
police's handling of the investigation. At the end of one of the programmes, the question was
raised if it was the Chief Superintendent who had decided that a report should not be included in
the case or who concealed a witness's statement from the defence, the judges and the jury. Both
journalists were charged with defamation and convicted. They were sentenced to 20 day-fines of
DKK 400 (EUR 53) and ordered to pay DKK 100.000 (EUR 13.400) compensation.
The European Court of Human Rights has now decided that this conviction breached neither
Article 6 nor Article 10 of the European Convention. In its judgment of 19 June 2003, the Court,
inter alia, emphasized that "[p]ublic prosecutors and superior police officers are civil servants
whose task it is to contribute to the proper administration of justice. In this respect they form part
of the judicial machinery in the broader sense of this term. It is in the general interest that they,
like judicial officers, should enjoy public confidence. It may therefore be necessary for the State
to protect them from accusations that are unfounded".
The Court is of the opinion that the television programme left the viewers with the impression
that the named Chief Superintendent had taken part in the suppression of a report in a murder
case, and thus committed a serious criminal offence. The Court accepts that journalists divulge
information on issues of general interest, provided however "that they are acting in good faith
and on accurate factual basis and provide 'reliable and precise' information in accordance with
the ethics of journalism". The Court is of the opinion that it is doubtful, having regard to the
nature and degree of the accusation, that the applicants' research was adequate or sufficient to
substantiate their concluding allegation that the Chief Superintendent had deliberately suppressed
a vital fact in a murder case. The Court also takes into consideration that the programme was
broadcast at peak viewing time on a national TV station devoted to objectivity and pluralism, and
accordingly, was seen by a wide public. The Court reiterates that the audio-visual media often
have a much more immediate and powerful effect than the print media. The Court reaches the
conclusion that the interference with the applicants' freedom of expression did not violate Article
10 of the Convention, as the conviction was necessary for the protection of the reputation and the
rights of others. Three of the seven judges of the Court dissented, emphasizing the vital role of
the press as public watchdog in imparting information of serious public concern.
•
Pedersen and Baadsgaard v. Denmark, no. 49017/99, 19 June 2003.
on 17 December 2004.
IRIS 2003-9/2
122
European Court of Human Rights: Case of Murphy v. Ireland
Dirk Voorhoof
In a judgment of 10 July 2003 the European Court of Human Rights unanimously held that the
applicant's exclusion from broadcasting an advertisement announcing a religious event, was
considered to be prescribed by law, had a legitimate goal and was necessary in a democratic
society. The decision by the Irish Radio and Television Commission (IRTC) to stop the
broadcast of the advertisement was taken in application of Section 10(3) of the Irish Radio and
Television Act, which stipulates that no advertisement shall be broadcast which is directed
towards any religious or political end (see IRIS 1998-1: 6, IRIS 1998-7: 9 and IRIS 2003-2: 11).
The Court accepted that the impugned provision sought to ensure respect for the religious
doctrines and beliefs of others so that the aims of the prohibition were the protection of public
order and safety together with the protection of the rights and freedoms of others. Recognising
that a wide margin of appreciation is available to the Member States when regulating freedom of
expression in the sphere of religion, referring to the fact that religion has been a divisive issue
and that religious advertising might be considered offensive and open to the interpretation of
proselytism in Ireland, the Court was of the opinion that the prohibition on broadcasting the
advertisement was not an irrelevant nor a disproportionate restriction on the applicant's freedom
of expression. While there is not a clear consensus, nor a uniform conception of the legislative
regulation of the broadcasting of religious advertising in Europe, reference was made to the
existence in other countries of similar prohibitions on the broadcasting of religious advertising,
as well as to Article 12 of Directive 89/552/EEC of 3 October 1989 (Television without Frontiers
Directive) according to which television advertising shall not prejudice respect for human dignity
nor be offensive to religious or political beliefs. The Court also emphasized that the prohibition
concerned only the audio-visual media, which have a more immediate, invasive and powerful
impact, including on the passive recipient, and also the fact that advertising time is purchased
and that this would lean in favour of unbalanced usage by religious groups with larger resources
and advertising. For the Court it is important that the applicant, a pastor attached to the Irish
Faith Centre, a bible based Christian ministry in Dublin, remained free to advertise in any of the
print media or to participate as any other citizen in programmes on religious matters and to have
services of his church broadcast in the audio-visual media. The Court indeed accepts that a total
ban on religious advertising on radio and television is a proportionate measure: even a limited
freedom to advertise would benefit a dominant religion more than those religions with
significantly less adherents and resources. This would jar with the objective of promoting
neutrality in broadcasting, and in particular, of ensuring a "level playing field" for all religions in
the medium considered to have the most powerful impact. The Court reached the conclusion that
the interference with the applicant's freedom of expression did not violate Article 10 of the
Convention.
•
Murphy v. Ireland, no. 44179/98, ECHR 2003-IX (extracts).
IRIS 2003-9/3
123
European Court of Human Rights: Case of Ernst and Others v. Belgium
Dirk Voorhoof
Four Belgian journalists applied to the European Court of Human Rights, alleging (among other
complaints) that searches and seizures by the judicial authorities at their newspaper's offices,
their homes and the head office of the French speaking public broadcasting organisation RTBF
constituted a breach of their freedom of expression under Article 10 and a violation of their right
to privacy under Article 8 of the European Convention on Human Rights.
In 1995 searches were performed in connection with the prosecution of members of the police
and the judiciary for breach of professional confidence following leaks in some highly sensitive
criminal cases (the murder of the leader of the socialist party; investigations regarding industrial,
financial and political corruption). The complaint lodged by the journalists against the searches
and seizures at their places of work and homes was declared inadmissible by the Court of
Cassation and the journalists were informed that no further action would be taken on their
complaint.
The European Court, in its judgment of 15 July 2003, has come to the conclusion that the
searches and seizures violated the protection of journalistic sources guaranteed by the right to
freedom of expression and the right to privacy. The Court agreed that the interferences by the
Belgian judicial authorities were prescribed by law and were intended to prevent the disclosure
of information received in confidence and to maintain the authority and impartiality of the
judiciary. The Court considered that the searches and seizures, which were intended to gather
information that could lead to the identification of police officers or members of the judiciary
who were leaking confidential information, came within the sphere of the protection of
journalistic sources, an issue which called for the most careful scrutiny by the Court (see also
ECourtHR 27 March 1996, Goodwin v. United Kingdom see IRIS 1996-4: 5 and ECourtHR
25 February 2003, Roemen and Schmit v. Luxembourg see IRIS 2003-5: 3). The Court
emphasized the wide scale of the searches that had been performed, while at no stage had it been
alleged that the applicants had written articles containing secret information about the cases. The
Court also questioned whether other means could not have been employed to identify those
responsible for the breaches of confidence, and in particular took into consideration the fact that
the police officers involved in the operation of the searches had very wide investigative powers.
The Court found that the Belgian authorities had not shown that searches and seizures on such a
wide scale had been reasonably proportionate to the legitimate aims pursued and therefore came
to the conclusion that there had been a violation of Article 10 of the Convention. The Court, for
analogous reasons, also found a violation of the right to privacy protected by Article 8 of the
Convention.
•
Ernst and Others v. Belgium, no. 33400/96, 15 July 2003.
IRIS 2003-9/4
124
European Court of Human Rights: Case of Karkin v. Turkey
Dirk Voorhoof
The case of Karkin v. Turkey concerns the conviction of the secretary of a union who was
sentenced by the National Security Court in 1997 to one year's imprisonment for making a
speech inciting the people to hatred and hostility creating discrimination based on membership of
a social class and race, a criminal conviction in application of Article 312 of the Turkish
Criminal Code. Although the European Court of Human Rights clearly tion in south-east Turkey
and the need for the authorities to be alert to acts capable of fuelling additional violence in the
region, the Court did not agree that the conviction and punishment of Karkin was to be
considered necessary in a democratic society. The Court was of the opinion that the applicant's
speech was "political in nature" and was expressed during a peaceful gathering, far away from
the conflict zone. As these circumstances significantly limited the potential impact of the
comments on "national security", "public order" or "territorial integrity" and as the penalties
imposed on the applicant were severe, the Court unanimously concluded that there was a
violation of Article 10 of the European Convention on Human Rights.
•
Karkın v. Turkey, no. 43928/98, 23 September 2003.
IRIS 2004-1/3
125
European Court of Human Rights: Case of Kizilyaprak v. Turkey
Dirk Voorhoof
In the case of Kizilyaprak v. Turkey, the European Court of Human Rights is of the opinion that
the Turkish national authorities did not take sufficient account of the public's right to be
informed from different perspectives on the situation in south-east Turkey. The conviction of
Kizilyaprak concerned the publication of a book entitled "How we fought against the Kurdish
people! A soldier's memoirs". In this book, a Turkish soldier described what he experienced
during his military service in south-east Turkey. As the content of the book was considered as
disseminating separatist propaganda and incitement to hatred based on ethnic and regional
differences (Article 8 of the Prevention of Terrorism Act and Article 312 of the Criminal Code),
the owner of the publishing house, Zeynel Abidin Kizilyaprak, was sentenced to six months
imprisonment by the National Security Court in 1993. In a crucial consideration the Strasbourg
Court is of the opinion that, although some passages in the book painted an extremely negative
picture of the Turkish State and the army and reflected a very hostile tone, the content of the
book did not constitute an incitement to violence, armed resistance or an uprising. Referring also
to the severity of the conviction, the Court unanimously concluded that the Turkish authorities
had violated Article 10 of the European Convention on Human Rights.
•
Kızılyaprak v. Turkey, no. 27528/95, 2 October 2003.
IRIS 2004-1/4
126
European Court of Human Rights: Case of Müslüm Gündüz v. Turkey
Dirk Voorhoof
In the case of Müslüm Gündüz v. Turkey, the European Court of Human Rights evaluated the
necessity of a criminal conviction on the grounds of inciting the people to hatred and hostility.
The applicant, in his capacity as the leader of an Islamic sect, during a TV-debate broadcast by
HBB channel, demonstrated a profound dissatisfaction with contemporary democratic and
secular institutions in Turkey by describing them as "impious". During the programme he also
openly called for the introduction of the sharia. Because of these statements Müslüm Gündüz
was found guilty by the state security court of incitement to hatred and hostility on the basis of a
distinction based on religion. He was sentenced to two years' imprisonment.
In its judgment of 4 December 2003, the European Court of Human Rights came to the
conclusion that this interference by the Turkish authorities with the applicant's right to freedom
of expression violated Article 10 of the Convention. Although the applicant's conviction was
prescribed by Turkish criminal law and had the protection of morals and the rights of others as
well as the prevention of disorder or crime as legitimate goals, the Court was not convinced that
the punishment of Müslüm Gündüz was to be considered as necessary in a democratic society.
The Court observed that the applicant was invited to participate in the programme to present the
sect and its nonconformist views, including the notion that democratic values were incompatible
with its conception of Islam. This topic was the subject of widespread debate in the Turkish
media and concerned an issue of general interest. The Court once more emphasised that Article
10 of the Convention also protects information and ideas that shock, offend and disturb. At the
same time, however, there can be no doubt that expressions propagating, inciting or justifying
hatred based on intolerance, including religious intolerance, do not enjoy the protection of
Article 10. In the Court's view, the comments and statements of Müslüm Gündüz expressed
during the lively television debate could not be regarded as a call to violence or as "hate speech"
based on religious intolerance. The Court underlined that merely defending the sharia, without
calling for the use of violence to establish it, cannot be regarded as "hate speech".
Notwithstanding the margin of appreciation accorded to the national authorities, the Court was of
the opinion that for the purposes of Article 10 there were insufficient arguments to justify the
interference in the applicant's right to freedom of expression. By six votes to one the Court came
to the conclusion that there had been a violation of Article 10. The Turkish Judge, M. Türmen,
dissented with the majority of the Court. He was of the opinion that the statements of Müslüm
Gündüz comprised "hate speech" and were offensive for the majority of the Turkish people who
have chosen to live in a secular society.
•
Gündüz v. Turkey, no. 35071/97, ECHR 2003-XI.
IRIS 2004-2/2
127
European Court of Human Rights: Case of Abdullah Aydin v. Turkey
Dirk Voorhoof
The European Court of Human Rights, in its judgment of 9 March 2004, has come to the
conclusion that Turkey has violated the freedom of expression guaranteed by Article 10 of the
European Convention.
In the case of Abdullah Aydin v. Turkey, the applicant was convicted for making a speech during
a meeting of the Ankara Democracy Forum criticising the Government's policy towards citizens
of Kurdish origin and accusing the authorities of breaching human rights. The Ankara National
Security Court in 1997 found Abdullah Aydin guilty of incitement to hatred and hostility on
social, ethnic and regional differences, as he had drawn a distinction between the Turkish people
and the Kurdish people and had not referred to the damage caused by the PKK (Workers' Party
of Kurdistan). He was sentenced to one year's imprisonment and a fine.
Although the interference in the applicant's right to freedom of expression was prescribed by law
(art. 312 paras. 1 and 2 Criminal Code) and pursued the legitimate aims of prevention of disorder
and crime and the preservation of national security and territorial integrity, the European Court
could not be convinced that the interference was necessary in a democratic society. The Court
noted that the applicant indeed sharply criticised the Government's action and policy, but that his
speech also contained repeated calls for peace, equality and freedom. For the European Court it
is important that the speech at issue was political, was presented by a player on the Turkish
political scene, during a meeting of a democratic platform, and especially that it did not
encourage violence, armed resistance or insurrection. The Court also expressed the opinion that
the applicant had been convicted not so much for his comments as for not referring to or
denouncing the PKK's activities in south-east Turkey. Hence, the conviction was based
especially on what the applicant had not said. The Court considered this an insufficient
justification for the interference. Taking into account also the nature and severity of the penalties
imposed, the Court unanimously reached the conclusion that the applicant's conviction had not
been necessary in a democratic society and that there had been a violation of Article 10. In the
same judgment, the Court also found a violation of Article 6 para. 1 of the Convention (right to a
fair trial), referring to its standard opinion that civilians standing trial for offences under the
Criminal Code had legitimate reason to fear that a national security court which included a
military judge among its members might not be independent and impartial. The Court awarded
the applicant EUR 10,000 for non-pecuniary damage and EUR 3,000 for costs and expenses.
•
Abdullah Aydın v. Turkey, no. 42435/98, 9 March 2004.
IRIS 2004-4/1
128
European Court of Human Rights: Case of Radio France v. France
Dirk Voorhoof
The European Court of Human Rights, in its judgment of 30 March 2004, has agreed with the
French authorities that Radio France, its editorial director and a journalist were to be held liable
for the offence of public defamation of a civil servant. In a series of news flashes and bulletins in
1997, Radio France had mentioned an article published in the weekly magazine Le Point, which
alleged that the deputy prefect of Pithiviers in 1942 and 1943, Mr. Michel Junot, had supervised
the deportation of a thousand Jews. In 1998, the editorial director and the journalist were
convicted for public defamation and were ordered to pay a fine and damages of approximately
EUR 10,000. Radio France was also ordered to broadcast an announcement reporting the
judgment every two hours for a period of 24 hours. The Paris Court of Appeal decided that
Michel Junot's honour and dignity had been damaged, in particular because of the fact that in the
news flashes it was said that the former deputy prefect had supervised the deportation of a
thousand Jews (while in reality he had not taken the decision regarding the deportation); also, by
comparing Mr. Junot's situation with that of Maurice Papon (who effectively has been convicted
by the assizes Court for participation in crimes against humanity) and by suggesting that he had
not been a member of the Resistance (while there was substantial evidence that Junot had been
active in the Resistance).
The Strasbourg Court recognized that the disputed broadcasts had taken place against the
background of a public debate and that they mainly had quoted, with correct reference to their
source, from a serious weekly magazine. However, some allegations in the news flashes on
Radio France had not been published in Le Point and in the news flashes some facts were
presented in a much more affirmative tone than in the magazine article. In view of the
seriousness of the facts inaccurately attributed to Mr. Michel Junot and because the news flashes
had been broadcast many times with national coverage (the audiovisual media being powerful
instruments to reach and influence a large part of the population), the European Court came to
the conclusion that the French jurisdictional authorities had correctly applied Article 10 of the
Convention, as the exercise of freedom of expression can be restricted or penalized taking into
account the duties and responsibilities of media and journalists. According to the Strasbourg
Court, the journalists and the director of Radio France should have exercised the utmost caution,
as they must have been aware of the consequences for Mr. Junot of the bulletins that were
broadcast to the whole of France. The conviction of Radio France, its director and a journalist
was considered to be prescribed by law (Articles 29, 31 and 41 Press Act 1881), to pursue a
legitimate goal (protection of the reputation and the rights of others, with reference also to the
right of privacy as guaranteed by Article 8 of the Convention) and to be necessary in a
democratic society. The Court unanimously came to the conclusion that there had been no
violation of Article 10 of the Convention. The Court also agreed that it was possible to consider
the responsibility of the director in the circumstances of the case and that the order to broadcast
the convicting judgment was to be considered as prescribed by law. Therefore, the Court also
was of the opinion that there had been no breach of Article 6 para. 2, or of Article 7 para. 1 of the
European Convention on Human Rights.
129
•
Radio France and Others v. France, no. 53984/00, ECHR 2004-II.
IRIS 2004-5/2
130
European Court of Human Rights: Case of von Hannover v. Germany
Dirk Voorhoof
The European Court of Human Rights in a judgment of 24 June 2004 has come to the conclusion
that Germany has not awarded a sufficient level of protection to the right of privacy of Princess
Caroline von Hannover. On several occasions Caroline von Hannover, the daughter of Prince
Rainier III of Monaco, applied to the German courts for an injunction to prevent any further
publication of a series of photographs which had appeared in the German magazines Bunte,
Freizeit Revue and Neue Post. As Caroline von Hannover was undeniably to be considered as a
contemporary public figure " par excellence ", the German courts were of the opinion that she
had to tolerate she appeared with her children or with a friend in a secluded place in a restaurant.
Other photos however showing Caroline von Hannover on horseback, shopping, cycling or
skiing were to be considered as falling under the right of the press to inform the public on events
and public persons in contemporary society, just like a series of photographs showing the
Princess in the Monte Carlo Beach Club.
In its judgment of 24 June, the Strasbourg Court agreed with Caroline von Hannover that the
decisions of the German courts infringed her right to respect for her private life as guaranteed by
Article 8 of the Convention. The Court recognizes that "the protection of private life has to be
balanced against the freedom of expression guaranteed by Article 10 of the Convention",
emphasizing at the same time that "the present case does not concern the dissemination of
"ideas", but of images containing very personal or even intimate "information" about an
individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of
continual harassment which induces in the person concerned a very strong sense of intrusion into
their private life or even of persecution". In such circumstances, priority has to be given to
respect for the right to privacy. As a matter of fact "a fundamental distinction needs to be made
between reporting facts even controversial ones capable of contributing to a debate in a
democratic society relating to politicians in the exercise of their functions, for example, and
reporting details of the private life of an individual who, moreover, as in this case, does not
exercise official functions. While in the former case the press exercises its vital role of
"watchdog" in a democracy by contributing to "imparting information and ideas on matters of
public interest", it does not do so in the latter case". According to the Court, the sole purpose of
the publication of the photos was to satisfy the curiosity of a particular readership regarding the
details of the applicant's private life. In these conditions freedom of expression requires a
narrower interpretation. The Court also stated that "increased vigilance in protecting private life
is necessary to contend with new communication technologies which make it possible to store
and reproduce personal data. This also applies to the systematic taking of specific photos and
their dissemination to a broad section of the public". In the Court's view, merely classifying the
applicant as a figure of contemporary society " par excellence ", does not suffice to justify an
intrusion into her private life. The Court therefore considers that the criteria on which the
domestic courts based their decisions were not sufficient to ensure the effective protection of the
applicant's private life and that she should, in the circumstances of the case, have had a
"legitimate expectation" of protection of her private life. The Court unanimously reached the
131
conclusion that the German courts did not strike a fair balance between the competing rights and
that there was a violation of Article 8 of the Convention.
•
Von Hannover v. Germany, no. 59320/00, ECHR 2004-VI.
IRIS 2004-8/2
132
European Court of Human Rights: Application by Österreichischer Rundfunk Declared
Inadmissible
Dirk Voorhoof
The European Court of Human Rights, in a decision of 25 May 2004, has come to the conclusion
that Austria has not violated Article 10 of the Convention by prohibiting in 1999 the
Österreichischer Rundfunk (ORF) from publishing pictures of a person (B.) showing him as an
accused during the well known letter-bomb campaign proceedings of some years before. B. had
started proceedings in 1998 against the ORF requesting that the broadcasting company be
prohibited from publishing without his consent pictures showing him as an accused in the
courtroom, referring to the letter-bomb campaign without mentioning his final acquittal or if the
impression was created that he was a neo-Nazi, was convicted of offences under the National
Socialism Prohibition Act without mentioning that the imposed sentence had already been served
or that he had been released on parole in the meanwhile. The Vienna Commercial Court and the
Vienna Court of Appeal dismissed B.'s claims, arguing that B's interests were not infringed by
the neutral disclosure of his picture, that no impression was given that he had been convicted of
participating in the letter-bomb assassinations, and that he had indeed been convicted of a serious
crime. Therefore, B. could not enjoy unlimited protection of his identity. On 1 June 1999, the
Supreme Court however was of the opinion that the publication of B.'s picture by ORF had
obviously interfered with his interests as it reminded the public of B.'s court appearance three
years after his trial and his release on parole. The Supreme Court decided that there was no
longer a public interest in having B.'s picture published and ordered the ORF to refrain from
publishing or disseminating B.'s pictures without his consent showing him in the courtroom in
the circumstances mentioned above.
The ORF complained under Article 10 of the Convention that the Supreme Court's judgment
violated its right to freedom of expression. Without deciding on the Government's interesting
preliminary objection contesting the ORF's locus standi within the meaning of Article 34 of the
Convention (the applicant as a public broadcasting organisation being a governmental
organisation), the Court unanimously reached the conclusion that the imposed measure by the
Austrian Supreme Court did not violate Article 10 of the Convention and declared the
application by the ORF inadmissible. The Court emphasizes the difference between the present
case and the findings in the case of News Verlags GmbH & CoKG v. Austria (ECourtHR 11
January 2000, Appl. 31457/96, see IRIS 2000-2: 2), as the Austrian courts in that case had issued
a total prohibition on publication of B.'s picture by News Verlags, whereas in the present case
the ORF was only prohibited from doing so in a specific context. Furthermore, the report in the
News Verlags case was published at a time when the pending criminal proceedings against B.
were to be considered as a matter of great public interest. In the present case there was no public
interest involved in the publication of the picture of B. and there was no need for another public
stigmatisation. The Court is of the opinion that the private interest of B. in seeking to reintegrate
himself into society after having been released on parole outweighed the public interest in the
disclosure of his picture by the media. The Court also found that the prohibition at issue could
not be described as amounting to a general prohibition against publishing B.'s picture and
therefore found that the measure was also proportionate to the aim pursued within the meaning
133
of Article 10 of the Convention. The complaint by ORF was considered manifestly ill-founded
and hence declared inadmissible.
•
Österreichischer Rundfunk v. Austria (dec.), no. 57597/00, 25 May 2004.
IRIS 2004-10/2
134
European Court of Human Rights: Case of Plon v. France
Dirk Voorhoof
This case concerns the prohibition of the distribution of the book written by Dr. Gubler " Le
Grand Secret ", about the former president Mitterrand and how his cancer had been diagnosed
and medically treated. The central question is: was the prohibition of the distribution of the book
in 1996 to be considered as necessary in a democratic society in order to protect the deceased
president's honour, his reputation and the intimacy of his private life? Many items of information
revealed in the book were indeed legally confidential and were capable of infringing the rights of
the deceased and his family. But was this a sufficient reason to legitimise a blanket ban of the
book?
As to whether the interference by the French courts ordering the prohibition of the distribution of
Dr. Gubler's book at the request of Mitterrand's widow and children met a pressing social need,
the European Court emphasises in the first place that the publication of the book had taken place
in the context of a general-interest debate. This debate had already been going on for some time
in France and was related to the right of the public to be informed about the president's serious
illnesses and his capacity to hold that office, being aware that he was seriously ill.
The European Court considered that the interim ban on the distribution of " Le Grand Secret " a
few days after Mitterrand's death and until the relevant courts had ruled on its compatibility with
medical confidentiality and the rights of others as necessary in a democratic society for the
protection of the rights of President Mitterrand and his heirs and successors.
The ruling however, more than nine months after Mitterrand's death, to keep the ban on the book,
is considered as a violation of Article 10 of the Convention. Moreover, at the time when the
French court ruled on the merits of the case 40,000 copies of the book had already been sold, the
book had been published on the internet and it had been the subject of much comment in the
media. Accordingly, preserving medical confidentiality could no longer constitute a major
imperative. The Strasbourg Court consequently considered that when the French court gave
judgment there was no longer a pressing social need justifying the continuation in force of the
ban on distribution of " Le Grand Secret ". While the Court found no violation in regard to the
injunction prohibiting distribution of the book issued as an interim measure by the urgent
applications judge (summary proceedings), the European Court comes to the conclusion that
there has been a violation of Article 10 of the Convention in regard to the order maintaining that
prohibition in force made by the civil court which ruled on the merits.
•
Editions Plon v. France, no. 58148/00, ECHR 2004-IV.
IRIS 2004-10/3
135
European Court of Human Rights: Final Judgment in the Case of Pedersen and
Baadsgaard v. Denmark
Dirk Voorhoof
In Strasbourg, two journalists of Danmarks Radio (Danish National television) complained about
their conviction for defamation of a Chief Superintendent. The journalists, Pedersen and
Baadsgaard, had produced two programmes about a murder trial in which they had criticised the
police's handling of the investigation. At the end of the programmes, the question was raised if it
was the Chief Superintendent who had decided that a report should not be included in the case or
who concealed a witness's statement from the defence, the judges and the jury. Both journalists
were charged with defamation and convicted and sentenced to 20 day-fines of DKK 400,
amounting to DKK 8,000 (equivalent to approximately EUR 1,078) and ordered to pay
compensation to the estate of the deceased Chief Superintendent of DKK 100,000 (equivalent to
approximately EUR 13,469). The domestic courts came to the conclusion that the journalists
lacked a sufficient factual basis for the allegation that the named Chief Superintendent had
deliberately suppressed a vital piece of evidence in the murder case. In a Chamber judgment of
19 June 2003, the Court held by four votes to three, that there had been no violation of Article 10
(see IRIS 2003-9: 2). On 3 December 2003, the panel of the Grand Chamber accepted a request
by the applicants for the case to be referred to the Grand Chamber. The Danish Union of
Journalists was given leave to submit written comments. The Grand Chamber of the European
Court of Human Rights in its judgment of 17 December 2004 has now also come to the
conclusion, by nine votes to eight, that there had been no violation of Article 10. The Court
emphasised that the accusation against the named Chief Superintendent was an allegation of fact
susceptible of proof, while the applicants never endeavoured to provide any justification for their
allegation, and its veracity had never been proven. The applicants also relied on just one witness.
The allegation of deliberate interference with evidence, made at peak viewing time on a national
TV station, was very serious for the named Chief Superintendent and would have entailed
criminal prosecution had it been true. The offence alleged was punishable by up to nine years'
imprisonment. It inevitably not only undermined public confidence in him, but also disregarded
his right to be presumed innocent until proven guilty according to law. In the Court's view, the
finding of a procedural failure in the conduct of the investigation in the murder case as such
could not provide a sufficient factual basis for the applicants' accusation that the Chief
Superintendent had actively tampered with evidence. The Court reached the conclusion that the
interference in the applicants' freedom of expression did not violate Article 10 of the Convention,
as the conviction was necessary for the protection of the reputation and the rights of others. Eight
of the 17 judges of the Grand Chamber Court dissented, emphasizing the vital role of the press as
public watchdog in imparting information of serious public concern and the fact that the
applicants had conducted a large-scale search for witnesses when preparing their programmes
and that they had a sufficient factual basis to believe that a report did not contain the full
statement of an important witness. According to the minority of the judges, a chief
superintendent of police must accept that his acts and omissions in an important case should be
subject to close and indeed rigorous scrutiny.
•
Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, ECHR 2004-XI.
136
IRIS 2005-2/3
137
European Court of Human Rights: Final Judgment in Case Cumpana and Mazare v.
Romania
Dirk Voorhoof
Constantin Cumpana and Radu Mazare are both professional journalists who have been
convicted in Romania of insult and defamation. In April 1994 they published an article in the
Telegraf newspaper questioning the legality of a contract in which the Constan ta City Council
had authorised a commercial company, Vinalex, to perform the service of towing away illegally
parked vehicles. The article, which appeared under the headline "Former Deputy Mayor D.M.
and serving judge R.M. responsible for series of offences in Vinalex scam", was accompanied by
a cartoon showing the judge, Mrs R.M., on the former deputy mayor's arm, carrying a bag
marked "Vinalex" containing banknotes. Mrs R.M., who had signed the contract with Vinalex on
behalf of the city council while employed by the council as a legal expert, brought proceedings
against Cumpana and Mazare. She submitted that the cartoon had led readers to believe that she
had had intimate relations with the former deputy mayor, despite the fact that they were both
married. In 1995 both journalists were convicted of insult and defamation and sentenced to seven
months' imprisonment. They were also disqualified from exercising certain civil rights and
prohibited from working as journalists for one year. In addition, they were ordered to pay Mrs
R.M. a specified sum for non-pecuniary damage. In November 1996 the applicants were granted
a presidential pardon releasing them from their custodial sentence. In a Chamber judgment of 10
June 2003 the Strasbourg Court held by five votes to two that there had been no violation of
Article 10 of the Convention, emphasizing that the article and the cartoon were indeed damaging
the authority, reputation and private life of judge R.M., overstepping the bounds of acceptable
criticism. The Grand Chamber of the European Court in its judgment of 17 December 2004 has
now unanimously come to the conclusion that there has been a violation of Article 10. As the
allegations and insinuations in the article did not have a sufficient factual basis, the Court is of
the opinion that the Romanian authorities were entitled to consider it necessary to restrict the
exercise of the applicants' right to freedom of expression and that their conviction for insult and
defamation had accordingly met a "pressing social need". However, the Court observes that the
sanctions imposed on the applicants have been very severe and disproportionate. In regulating
the exercise of freedom of expression in order to ensure adequate protection by law of
individuals' reputations, States should avoid taking measures that might deter the media from
fulfilling their role of alerting the public to apparent or suspected misuse of public power. The
imposition of a prison sentence for a press offence is compatible with journalists' freedom of
expression only in exceptional circumstances, notably where other fundamental rights had been
seriously impaired, as, for example, in the case of hate speech or incitement to violence. In a
classic case of defamation, such as the present case, imposing a prison sentence inevitably has a
chilling effect. The order disqualifying the applicants from exercising certain civil rights is also
to be considered particularly inappropriate and is not justified by the nature of the offences for
which both journalists have been held criminally liable. The order prohibiting the applicants
from working as journalists for one year is considered as a preventive measure of general scope
contravening the principle that the press must be able to perform the role of public watchdog in a
democratic society. The Court comes to the conclusion that, although the interference with both
journalists' right to freedom of expression might have been justified as such, the criminal
138
sanction and the accompanying prohibitions imposed on them by the Romanian courts have been
manifestly disproportionate in their nature and severity to the legitimate aim pursued. The Court
therefore holds that there has been a violation of Article 10 of the Convention.
•
Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, ECHR 2004-XI.
IRIS 2005-2/4
139
European Court of Human Rights: Case of Steel and Morris v. the United Kingdom
Dirk Voorhoof
The European Court of Human Rights in a judgment of 15 February 2005 has come unanimously
to the conclusion that the United Kingdom has violated Article 6 (fair trial) and Article 10
(freedom of expression) of the European Convention on Human Rights in a libel case opposing
the McDonald's Corporation against two United Kingdom nationals, Helen Steel and David
Morris, who had distributed leaflets as part of an anti-McDonald's campaign. In 1986 a six-page
leaflet entitled “What's wrong with McDonald's?” was distributed by Steel and Morris and in
1990 McDonald's issued a writ against them claiming damages for libel. The trial took place
before a judge sitting alone from June 1994 until December 1996. It was the longest trial in
English legal history. On appeal the judgment of the trial judge was upheld in substance, the
damages awarded were reduced by the Court of Appeal from a total of GBP 60,000 to a total of
GBP 40,000 and leave to appeal to the House of Lords was refused. Throughout the trial and
appeal proceedings Steel and Morris were refused legal aid: they represented themselves only
with some help from volunteer lawyers. Steel and Morris applied to the European Court on 20
September 2000, complaining that the proceedings were unfair, principally because they were
denied legal aid, although they were unwaged and dependant on income support.
The applicants also complained that the outcome of the proceedings constituted a
disproportionate interference with their freedom of expression. With regard to the first
complaint, under Article 6 para. 1 the Court is of the opinion that the denial of legal aid to the
applicants had deprived them of the opportunity to present their case effectively before the Court
and contributed to an unacceptable inequality of arms with McDonald's, who in this complex
case, lasting 313 court days and involving 40,000 pages of documentation, had been represented
by leading and junior counsel, experienced in defamation law and by two solicitors and other
assistants. With regard to the second complaint, the Court reaches the conclusion that there has
been a violation of Article 10 of the Convention. Although it is not in principle incompatible
with Article 10 to place on a defendant in libel proceedings the onus of proving to the civil
standard the truth of defamatory statements, it is considered essential by the Court that when a
legal remedy is offered to a large multinational company to defend itself against defamatory
allegations, also the countervailing interest in free expression and open debate must be
guaranteed by providing procedural fairness and equality of arms to the defendants in such a
case. The Court also emphasizes the general interest in promoting the free circulation of
information and ideas about the activities of powerful commercial entities, as well as the
potential “chilling” effect on others an award of damages for defamation in this context may
have. Moreover, according to the Strasbourg Court, the award of damages was disproportionate
to the legitimate aim served in order to protect the right and reputation of McDonalds, as the sum
of GBP 40,000 was not in a reasonable relation of proportionality to the injury to reputation
suffered. Given the lack of procedural fairness and the disproportionate award of damages, the
Court found that there had been a violation of Article 10 in this case, which in the media has
been labelled as the “McLibel” case. The United Kingdom is ordered to pay EUR 35,000 to the
applicants in respect of non-pecuniary damages and EUR 47,311 in respect of costs and expenses
related to the Strasbourg proceedings.
140
•
Steel and Morris v. the United Kingdom, no. 68416/01, ECHR 2005-II.
IRIS 2005-4/1
141
European Court of Human Rights: Case of Independent News and Media v. Ireland
Dirk Voorhoof
In a judgment of 16 June 2005, the European Court of Human Rights is of the opinion that a
conviction to pay an award of damages of EUR 381.000 because of defamatory statements in a
press article criticizing a politician is not to be considered as a violation of Article 10 of the
European Convention of Human Rights.
In 1997 a High Court jury in Ireland found an article published in the Sunday Independent
robustly criticizing a national politician, Mr. de Rossa, to be defamatory and awarded Mr. de
Rossa IEP 300.000 (EUR 381.000) in damages. The award, which was upheld by the Supreme
Court, was three times the highest libel award previously approved in Ireland. The litigious
article referred to some activities of a criminal nature of Mr. de Rossa's political party and
criticised his former privileged relations with the Central Committee of the Communist Party of
the Soviet Union. According to the article, Mr. de Rossa's political friends in the Soviet Union
“were no better than gangsters (..). They were anti-Semitic”. In upholding the award of damages,
the Supreme Court took into account a number of factors, including the gravity of the libel, the
effect on Mr. de Rossa as leader of a political party and on his negotiations to form a government
at the time of publication, the extent of the publication, the conduct of the first applicant
newspaper and the consequent necessity for Mr. de Rossa to endure three long and difficult
trials. Having assessed these factors, it concluded that the jury would have been justified in going
to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as
compensation. While IEP 300,000 was a substantial sum, it noted that the libel was serious and
grave, involving an imputation that Mr. de Rossa was involved in or tolerated serious crime and
personally supported anti-Semitism and violent Communist oppression. “Bearing in mind that a
fundamental principle of the law of compensatory damages is that the award must always be
reasonable and fair and bear a due correspondence with the injury suffered and not be
disproportionate thereto”, the Supreme Court was not satisfied that “that the award made by the
jury in this case went beyond what a reasonable jury applying the law to all the relevant
considerations could reasonably have awarded and is not disproportionate to the injury suffered
by the Respondent”. The press groups publishing the Sunday Independent lodged an application
before the Strasbourg Court, complaining that the exceptional damages award and the absence of
adequate safeguards against disproportionate awards violated their rights under Article 10 of the
Convention (freedom of expression). The application was also supported by some other Irish
media groups and by the National Union of Journalists (NUJ).
Taking its judgment of 13 July 1995 in the case of Tolstoy Miloslavsky v. U.K. as a point of
reference, the Court is of the opinion that the present jury award was sufficiently unusual as to
require a review by the Court of the adequacy and effectiveness of the domestic safeguards
against disproportionate awards. According to the Court, unpredictably large damages awards in
libel cases are considered capable of having a chilling effect on the press and therefore require
the most careful scrutiny. The Strasbourg Court however, referring to the judgment of the Irish
Supreme Court upholding and legitimising the award of damages, comes to the conclusion, by 6
votes to 1, that there has been no violation of the right of freedom of expression in this case:
142
“Having regard to the particular circumstances of the present case, notably the measure of
appellate control, and the margin of appreciation accorded to a State in this context, the Court
does not find that it has been demonstrated that there were ineffective or inadequate safeguards
against a disproportionate award of the jury in the present case”. In his dissenting opinion judge
Cabral Barreto of Portugal argues that the amount of damages which the publishing group of the
Sunday Independent was ordered to pay was so high “that the reasonable relationship of
proportionality between the interference and the legitimate aim pursued was not observed”. The
6 judges of the majority however came to the conclusion that there has not been a violation of
• Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, no.
55120/00, ECHR 2005-V (extracts).
IRIS 2005-8/2
143
European Court of Human Rights: Case of Grinberg v. Russia
Dirk Voorhoof
In a judgment of 21 July 2005, the European Court of Human Rights has come to the conclusion
that the Russian authorities overstepped the margin of appreciation afforded to member states by
convicting a Russian citizen because of a defamatory statement in a press article criticizing a
politician. It is the first judgment in which the European Court finds a violation of freedom of
expression by the Russian authorities since the Russian Federation became a member of the
Council of Europe and subscribed to the European Convention on Human Rights in 1996. The
Strasbourg Court emphasizes the distinction that is to be made between statements of fact and
value judgments and considers it unacceptable that the Russian law on defamation, as it stood at
the material time, made no distinction between these notions, referring uniformly to statements
and assuming that any statement was amenable of proof in civil proceedings. The case goes back
to an article in the Guberniya newspaper written by Isaak Pavlovich Grinberg in 2002. The
article criticised the elected Governor of the Ulyanovsk Region, the former General V.A.
Shamanov for “waging war” against the independent press and journalists. The article also
referred to the support by Mr. Shamanov for a colonel who had killed an 18-year-old Chechen
girl, considering that Mr. Shamanov had “no shame and no scruples”. On 14 November 2002,
the Leninskiy District Court of Ulyanovsk found that the assertion that Mr. Shamanov had no
shame and no scruples impaired his honour, dignity and professional reputation and that Mr.
Grinberg had not proved the truthfulness of this statement. The judgment was later confirmed by
the Regional Court, while the Supreme Court, on 22 August 2003, dismissed Mr. Grinberg's
application for the institution of supervisory-review proceedings.
Grinberg's complaint, under Article 10 of the Convention, that his right to impart information
and ideas had been violated, turned out to be successful before the European Court in Strasbourg.
The Court refers to its well-established case law considering freedom of expression as one of the
essential foundations of a democratic society, emphasizing the essential function of the press to
play its vital role of “public watchdog”, the fact that there is little scope under Article 10 para. 2
for restrictions on political speech and especially the distinction that is to be made in defamation
cases between statements of fact and value judgments. While the existence of facts can be
demonstrated, the truth of value judgments is not susceptible of proof. The Court considers that
the contested comment was a clear example of a value judgment that represented Mr. Grinberg's
subjective appraisal of the moral dimension of Mr. Shamanov's behaviour who, in his eyes, only
kept one promise after being elected as Governor, that of waging war against the independent
press and journalists. The Court takes into account that the contested press article concerned an
issue of public interest relating to the freedom of the media in the Ulyanovsk region and that it
criticised an elected, professional politician in respect of whom the limits of acceptable criticism
are wider than in the case of a private individual. The facts which gave rise to the criticism were
not contested and Mr. Grinberg had after all expressed his views in an inoffensive manner. Nor
did Mr. Grinberg's statements affect Mr. Shamanov's political career or his professional life. For
these reasons the Strasbourg Court unanimously came to the conclusion that the domestic courts
did not convincingly establish any pressing social need for putting the protection of the
politician's personality rights above the applicant's right to freedom of expression and the general
144
interest in promoting this freedom where issues of public interest are concerned. Accordingly,
the Court came to the conclusion that there has been a violation of Article 10 of the Convention.
•
Grinberg v. Russia, no. 23472/03, 21 July 2005.
IRIS 2005-9/1
145
European Court of Human Rights: Case of I.A. v. Turkey
Dirk Voorhoof
The European Court of Human Rights in a judgment of 13 September 2005 has come to the
conclusion that the Turkish authorities did not violate freedom of expression by convicting a
book publisher for publishing insults against “God, the Religion, the Prophet and the Holy
Book”. The managing director of the Berfin publishing house in France was sentenced to two
years' imprisonment, which was later commuted to a fine.
The European Court in Strasbourg is of the opinion that this interference in the applicant's right
to freedom of expression had been prescribed by law (art. 175 §§ 3 and 4 of the Turkish Criminal
Code) and had pursued the legitimate aims of preventing disorder and protecting morals and the
rights of others. The issue for the Court was to determine whether the conviction of the publisher
had been necessary in a democratic society. This involved the balancing of the applicant's right
to impart his ideas on religious theory to the public, on the one hand, and the right of others to
respect for their freedom of thought, conscience and religion, on the other hand. The Court
reiterates that religious people have to tolerate and accept the denial by others of their religious
beliefs and even the propagation by others of doctrines hostile to their faith. A distinction is to be
made however between “provocative” opinions and abusive attacks on one's religion. According
to the Court, one part of the book indeed contained an abusive attack on the Prophet of Islam,
whereas it is asserted that some of the statements and words of the Prophet were “inspired in a
surge of exultation, in Aisha's arms… God's messenger broke his fast trough sexual intercourse,
after dinner and before prayer”. In the book it is stated that “Mohammed did not forbid sexual
intercourse with a dead person or a living animal”. The Court accepts that believers could
legitimately feel that these passages of the book constituted an unwarranted and offensive attack
on them. Hence, the conviction of the publisher was a measure that was intended to provide
protection against offensive attacks on matters regarded as sacred by Muslims. As the book was
not seized and the publisher had only to pay an insignificant fine, the Court comes, by four votes
to three, to the conclusion that the Turkish authorities did not violate the right to freedom of
expression. According to the three dissenting opinions (of the French, Portuguese and Czech
judges) the majority of the Court followed its traditional case law on blasphemy leaving a wide
margin of appreciation to the Member States. According to the three dissenters, the Court should
reconsider its jurisprudence in the case of Otto-Preminger-Institut v. Austria and Wingrove v.
United Kingdom, as this approach gave too much support to conformist speech and to the “
pensée unique ”, implying a cold and frightening approach to freedom of expression. The
majority of the Court however (the Turkish, Georgian, Hungarian and San Marino judges)
argued that the conviction of the book publisher met a pressing social need ie protecting the
rights of others. Accordingly there has been no violation of Article 10 of the Convention.
•
İ.A. v. Turkey, no. 42571/98, ECHR 2005-VIII.
IRIS 2005-10/3
146
European Court of Human Rights: Case of Wirtschafts-Trend Zeitschriften-Verlags
GmbH v. Austria
Dirk Voorhoof
In a judgment of 27 October 2005, the European Court of Human Rights has come to the
conclusion that the Austrian authorities violated freedom of expression by convicting
Wirtschafts-Trend Zeitschriften-Verlags GmbH, a limited liability company based in Vienna
which owns and publishes the weekly magazine Profil. In November 1998, Profil published a
review of a book written by a Member of the European Parliament and member of the Austrian
Freedom Party. Profil's article criticised the author of the book for his treatment of Jörg Haider,
the former leader of the Austrian Freedom Party (FPÖ), in that he pardoned “his belittlement of
the concentration camps as `punishment camps'” (“ Dessen Verharmlosung der
Konzentrationslager als 'Straflager' ”). Mr Haider successfully filed a compensation claim
against Profil as the Wiener Neustadt Regional Court ordered the applicant company to pay EUR
3,633 in compensation to Mr Haider. It also ordered the forfeiture of that particular issue of the
magazine and instructed the company to publish its judgment. In its reasoning, the court said that
Mr Haider's words had been taken out of context and that the article gave the impression that he
had played down the extent of crimes committed in concentration camps when using the term
punishment camps, and that he had thereby infringed the National Socialism Prohibition Act.
In its judgment of 27 October 2005, the European Court reiterates that the limits of acceptable
criticism are wider as regards a politician than as regards a private individual. The Court is of the
opinion that Haider is a leading politician who has been known for years for his ambiguous
statements about the National Socialist Regime and the Second World War and has, thus,
exposed himself to fierce criticism inside Austria, but also at the European level. In the Court's
view, Haider must therefore display a particularly high degree of tolerance in this context. In
essence, the Strasbourg Court is not convinced by the domestic court's argument that the
statement of belittling the concentration camps implied a reproach that Mr Haider had played
down the extent of the Nazi crimes and therefore came close to a reproach of criminal behaviour
under the Prohibition Act. The Court finds this conclusion somewhat far-fetched, as the
standards for assessing someone's political opinions are quite different from the standards for
assessing an accused person's responsibility under criminal law. According to the Court, the use
of the term “punishment camp”, which implies that persons are detained there for having
committed punishable offences, may reasonably be criticised as a belittlement of the
concentration camps all the more so if that term was applied by someone whose ambiguity
towards the Nazi era is well-known. The undisputed fact that Mr Haider had used the term
punishment camp instead of concentration camp was a sufficient factual basis for the applicant's
statement, which was therefore not excessive in the circumstances. In conclusion, the Court finds
that the reasons adduced by the domestic courts were not relevant and sufficient to justify the
interference. Moreover, the Court notes that the applicant was not only ordered to pay
compensation to Mr Haider and to publish the judgment finding it guilty of defamation, but that
the courts also ordered the forfeiture of the issue of Profil which is a severe and intrusive
measure. Thus, the interference was not proportionate either. Therefore, the Court unanimously
came to the conclusion that the interference complained of was not “necessary in a democratic
147
society” within the meaning of Article 10 § 2 of the Convention. Accordingly there has been a
•
Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria, no. 58547/00, 27 October 2005.
IRIS 2006-1/3
148
European Court of Human Rights: Case of Tourancheau and July v. France (affaire
Libération)
Dirk Voorhoof
In 1996, the French newspaper Libération published an article focusing on a murder case in
which adolescents were involved. The criminal investigation was still pending when the article
was published and two suspects, a young man, B. and his girlfriend, A., had been under
investigation. The article in Libération, written by Patricia Tourancheau, reproduced extracts
from statements made by A. to the police and the investigating judge, and comments from B.
contained in the case file. On the basis of section 38 of the Freedom of Press Act of 29 July
1881, criminal proceedings were brought against Tourancheau and against the editor of
Libération, Serge July. Section 38 of the 1881 Press Act prohibits the publication of any
document of the criminal proceedings until the day of the court hearing. Both the journalist and
the editor were found guilty and were each ordered to pay a fine of FRF 10,000 (approximately
EUR 1,525). Their conviction was upheld on appeal and by the French Supreme Court, although
payment of the fine was suspended. In the meantime, A. had been sentenced to eight years'
imprisonment for murder and B. had received a five-year prison sentence for failure to assist a
person in danger.
In its judgment of 24 November 2005, the Strasbourg Court has come to the conclusion that the
conviction of Tourancheau and July was not to be considered as a violation of Art. 10 of the
Convention. The Court noted that section 38 of the 1881 Press Act defined the scope of the legal
prohibition clearly and precisely, in terms of both content and duration, as it was designed to
prohibit publication of any document relating to proceedings concerning serious crimes or other
major offences until the day of the hearing. The fact that proceedings were not brought
systematically on the basis of section 38 of the 1881 Act, the matter being left to the discretion of
the public prosecutor's office, did not entitle the applicants to assume that they were in no danger
of being prosecuted, since being professional journalists they were familiar with the law. They
had therefore been in a reasonable position to foresee that the publication of extracts from the
case file in the article might subject them to prosecution. In the Court's view, the reasons given
by the French courts to justify the interference with the applicants' right to freedom of expression
had been “relevant and sufficient” for the purposes of Article 10 para. 2 of the Convention. The
courts had stressed the damaging consequences of publication of the article for the protection of
the reputation and rights of A. and B., for their right to be presumed innocent and for the
authority and impartiality of the judiciary, referring to the possible impact of the article on the
members of the jury. The Court took the view that the applicants' interest in imparting
information concerning the progress of criminal proceedings and the interest of the public in
receiving such information, were not sufficient to prevail over the considerations referred to by
the French courts. The European Court further considered that the penalties imposed on the
applicants were not disproportionate to the legitimate aims pursued by the authorities. In those
circumstances, the Court held that the applicants' conviction had amounted to an interference
with their right to freedom of expression which had been “necessary in a democratic society” in
order to protect the reputation and rights of others and to maintain the authority and impartiality
149
of the judiciary. It therefore held that there had been no violation of Article 10. The Cypriot,
Bulgarian, Croatian and Greek judge formed the smallest possible majority (4/3 decision).
The judges Costa, Tulkens and Lorenzen (France, Belgium and Denmark) expressed a joint
dissenting opinion, in which they argued why the conviction of the applicants is to be considered
a clear violation of the freedom of expression. Neither the breach of the presumption of
innocence, nor the possible impact on the members of the jury are considered pertinent
arguments in this case in order to legitimise the interference in the applicants' freedom of
expression. According to the joint dissenting opinion, journalists must be able to freely report
and comment on the functioning of the criminal justice system, as a basic principle enshrined in
the Recommendation of the Committee of Ministers 2003 (13) on the provision of information
through the media in relation to criminal proceedings. Referring to the concrete elements
reported in the newspaper's article and its context, the dissenting judges conclude that there is no
reasonable and proportional relation between the imposed restrictions and the legitimate aim
pursued. According to the dissenting judges Article 10 of the Convention has been violated.
•
Tourancheau and July v. France, no. 53886/00, 24 November 2005.
IRIS 2006-2/2
150
European Court of Human Rights: Nordisk Film & TV A/S v. Denmark
Dirk Voorhoof
In August 2002, by a judgment of the Højesteret (Danish Supreme Court), the applicant
company, Nordisk Film, was compelled to hand over limited specified unedited footage and
notes of a broadcast television programme investigating paedophilia in Denmark. In order to
make the programme, a journalist went undercover. He participated in meetings of “The
Paedophile Association” and, with a hidden camera, interviewed two members of the association
who made incriminating statements regarding the realities of paedophilia in both Denmark and
India, including advice on how to induce a child to chat over the internet and how easy it was to
procure children in India. In the documentary, broadcast on national television, false names were
used and all persons' faces and voices were blurred. The day after the programme was broadcast,
one of the interviewed persons, called “Mogens”, was arrested and charged with sexual offences.
For further investigation, the Copenhagen Police requested that the unshown portions of the
recordings made by the journalist be disclosed. The journalist and the editor of the applicant
company's documentary unit refused to comply with the request. The Copenhagen City Court
and the High Court also refused to grant the requested court order having regard to the need of
the media to be able to protect their sources. The Supreme Court, however, found against the
applicant company, the latter was therefore compelled to hand over some parts of the unedited
footage which solely related to “Mogens”. The court order explicitly exempted the recordings
and notes that would entail a risk of revealing the identity of some persons (a victim, a police
officer and the mother of a hotel manager), who where interviewed with the promise by the
journalist that they could participate without the possibility of being identified. In November
2002, Nordisk Film complained in Strasbourg that the Supreme Court's judgment breached its
rights under Article 10 of the Convention, referring to the European Court's case law affording a
high level of protection to journalistic sources.
In its decision of 8 December 2005, the Strasbourg Court has come to the conclusion that the
judgment of the Danish Supreme Court did not violate Article 10 of the Convention. The
Strasbourg Court is of the opinion that the applicant company was not ordered to disclose its
journalistic sources of information, rather, it was ordered to hand over part of its own research
material. The Court is not convinced that the degree of protection applied in this case can reach
the same level as that afforded to journalists when it concerns their right to keep their sources
confidential under Article 10 of the Convention. The Court is also of the opinion that it is the
State's duty to take measures designed to ensure that individuals within their jurisdiction are not
subjected to inhuman or degrading treatment, including such ill-treatment administered by
private individuals. These measures should provide effective protection, in particular, of children
and other vulnerable persons and include reasonable steps to prevent ill-treatment or sexual
abuse of which the authorities had or ought to have knowledge. The European Court supports the
opinion of the Danish Supreme Court that the non-edited recordings and the notes made by the
journalist could assist the investigation and production of evidence in the case against “Mogens”
and that it concerned the investigation of alleged serious criminal offences.
151
It is important to note that the Supreme Court's judgment explicitly guaranteed that material
which entailed the risk of revealing the identity of the journalist's sources was exempted from the
court order and that the order only concerned the handover of a limited part of the unedited
footage as opposed to more drastic measures such as, for example, a search of the journalist's
home and workplace. In these circumstances, the Strasbourg Court is satisfied that the order was
not disproportionate to the legitimate aim pursued and that the reasons given by the Danish
Supreme Court in justification of those measures were relevant and sufficient. Hence, Article 10
of the Convention has not been violated. The application is manifestly ill-founded and is
declared inadmissible.
The decision of the European Court makes it clear that the Danish Supreme Court's order to
compel the applicant to hand over the unedited footage is to be considered as an interference in
the applicant's freedom of expression within the meaning of Article 10 § 1 of the Convention. In
casu, the interference however meets all the conditions of Article 10 § 2, including the
justification as being “necessary in a democratic society”. The Strasbourg Court is also of the
opinion that the Danish Supreme Court and legislation (Art. 172 and 804-805 of the
Administration of Justice Act) clearly acknowledge that an interference with the protection of
journalistic sources cannot be compatible with Article 10 of the Convention unless it is justified
by an overriding requirement of public interest. It thereby reflects the approach developed in the
Strasbourg Court's jurisprudence in the cases of Goodwin v. UK (1996), Roemen and Schmit v.
Luxembourg (2003) and Ernst and others v. Belgium (2003).
•
Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005-XIII.
IRIS 2006-3/3
152
European Court of Human Rights: Case of Giniewski v. France
Dirk Voorhoof
Ghent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish
Regulator for the Media
In 1994, the newspaper Le quotidien de Paris published an article with the headline “The
obscurity of error”, concerning the encyclical “The splendour of truth” ( Veritatis Splendor )
issued by Pope John Paul II. The article was written by Paul Giniewski, a journalist, sociologist
and historian and contained a critical analysis of the particular doctrine developed by the
Catholic Church and its possible links with the origins of the Holocaust. A criminal complaint
was lodged against the applicant, the newspaper and its publishing director, alleging that they
had published racially defamatory statements against the Christian community. The defendants
were found guilty of defamation at first instance but were acquitted on appeal. Ruling
exclusively on the civil claim lodged by the Alliance générale contre le racisme et pour le
respect de l'identité française et chrétienne (General Alliance against Racism and for Respect for
the French and Christian Identity - AGRIF), the Orléans Court of Appeal ruled that Giniewski
was to pay damages to the AGRIF and that its decision was to be published at his expense in a
national newspaper. The Orléans Court of Appeal considered the article defamatory toward a
group of persons because of their religious beliefs. The applicant unsuccessfully contested the
decision before the French Supreme Court.
In a judgment of 31 January 2006, the European Court of Human Rights holds that the article in
question had contributed to a debate on the various possible reasons behind the extermination of
Jews in Europe: a question of indisputable public interest in a democratic society. In such
matters, restrictions on freedom of expression are to be strictly interpreted. Although the issue
raised in the present case concerned a doctrine endorsed by the Catholic Church, therefore a
religious matter, an analysis of the article in question showed that it did not contain attacks on
religious beliefs as such, but a view which the applicant had wished to express as a journalist and
historian. The Court considered it essential that a debate on the causes of acts of particular
gravity, resulting in crimes against humanity, take place freely in a democratic society. The
article in question had, moreover, not been “gratuitously offensive” or insulting and had not
incited disrespect or hatred. Nor had it cast doubt in any way on clearly established historical
facts.
From this perspective, the facts were different from those in I.A. v. Turkey regarding an
offensive attack on the Prophet of Islam (see IRIS 2005-10: 3) and those in R. Garaudy v.
France. The Court considered that the reasons given by the French courts could not be regarded
as sufficient to justify the interference with the applicant's right to freedom of expression.
Specifically with regard to the order to publish a notice of the ruling in a national newspaper at
the applicant's expense, the Court considers that while the publication of such a notice did not in
principle appear to constitute an excessive restriction on freedom of expression, the fact that it
mentioned the criminal offence of defamation undoubtedly had a deterrent effect. The sanction
thus imposed appeared disproportionate with regard to the importance and interest of the debate
in which the applicant had legitimately sought to take part. The Court therefore held that there
has been a violation of Article 10 of the Convention.
153
•
•
Giniewski v. France, no. 64016/00, ECHR 2006-I.
Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX (extracts).
IRIS 2006-4/1
154
European Court of Human Rights: Case of Özgür Radyo v. Turkey
Dirk Voorhoof
In 1998 and 1999 the Istanbul radio station Özgür Radyo was given three warnings and its
licence was twice suspended by Radyo Televizyon Üst Kurulu (Turkish broadcasting regulatory
authority - RTÜK). The first suspension was for a period of 90 days, the second suspension
period lasted 365 days. Some of Özgür Radyo’s programmes had touched on various themes
such as corruption, the methods used by the security forces to tackle terrorism and possible links
between the State and the Mafia. The radio station was sanctioned by RTÜK because one
programme was considered defamatory and other programmes had allegedly incited people to
engage in violence, terrorism or ethnic discrimination and stirred up hatred or offended the
independence, the national unity or the territorial integrity of the Turkish State. The radio station
turned to the administrative courts for an order setting aside each of the penalties, but its
applications were dismissed.
In its complaint to the European Court of Human Rights, Özgür Radyo argued primarily that the
penalties that had been imposed by the RTÜK entailed a violation of Article 10 of the European
Convention (freedom of expression). There was no discussion as to the fact that the sanctions
(both the warnings and the suspension of the licence) were prescribed by law (Art. 4 and 33 of
the Turkish Broadcasting Act n° 3984 of 12 April 1991) and pursued a legitimate aim as listed in
Article 10 para. 2 of the Convention. Thus, the decisive issue before the Court was whether the
interference with the applicant’s right to freedom of expression had been “necessary in a
democratic society”. In assessing the situation, the Court said it would have particular regard to
the words that had been used in the programmes and to the context in which they were broadcast,
including the background to the case and in particular the problems linked to the prevention of
terrorism.
The Court emphasizes that the programmes covered very serious issues of general interest that
had been widely debated in the media and that the dissemination of information on those themes
was entirely consistent with the media’s role as a “watchdog” in a democratic society. The Court
also notes that the information concerned had already been made available to the public. Some of
the programmes had only reproduced orally, without further comment, newspaper articles that
had already been published and for which no one had been prosecuted. Moreover, Özgür Radyo
had been diligent in explaining that it was citing newspaper articles and in identifying the
sources. The Court also observes that although certain particularly acerbic parts of the
programmes had made them to some degree hostile in tone, they had not encouraged the use of
violence, armed resistance or insurrection and did not constitute hate speech. The Court strongly
underlines that this is an essential factor to be taken into consideration. Finally the Court refers to
the severity of the penalties that had been imposed on the applicant, especially in terms of the
suspension of the licence, first for a period of 90 days and in a second decision for a period of
one year. The latter being the maximum penalty prescribed in Art. 33 of the Turkish
Broadcasting Act n° 3984. Taking into account all these elements of the case, the Strasbourg
Court considers the penalties disproportionate to the aims pursued and, therefore, not “necessary
155
in a democratic society”. Consequently, the Court unanimously holds that there has been a
violation of Article 10.
• Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş. v. Turkey (no. 1), nos.
64178/00, 64179/00, 64181/00, 64183/00 and 64184/00, 30 March 2006.
IRIS 2006-5/2
156
European Court of Human Rights: Case of Stoll v. Switzerland
Dirk Voorhoof
In December 1996, the Swiss ambassador to the United States drew up a “strategic document”,
classified as “confidential”, concerning the possible strategies regarding the compensation due to
Holocaust victims for unclaimed assets deposited in Swiss banks. The document was sent to the
Federal Department of Foreign Affairs in Berne and to a limited list of other persons. Martin
Stoll, a journalist working for Sonntags-Zeitung, also obtained a copy of this document, probably
as a result of a breach of professional confidence by one of the initial recipients of such a copy.
Soon afterwards, the Sonntags-Zeitung published two articles by Martin Stoll, featuring extracts
from the document. Other newspapers soon followed suit. In 1999, Stoll was sentenced to a fine
of CHF 800 (EUR 520) for publishing “official confidential deliberations” within the meaning of
Article 293 of the Criminal Code. This provision not only targets the person who is responsible
for the breach of confidence of official secrets, but also those who were accomplices in giving
publicity to such secrets. The Swiss Press Council, to which the case also had been referred in
the meantime, found that Stoll had irresponsibly made some extracts appear sensational and
shocking by shortening the analysis and failing to sufficiently place the report in context.
In a judgment of 25 April 2006, the European Court of Human Rights held, by four votes to
three, that the conviction of Stoll is to be considered as a breach of the journalist’s freedom of
expression as guaranteed by Article 10 of the Human Rights’ Convention. For the Court, it is
crucial that the information contained in the report manifestly raised matters of public interest,
that the role of the media as critic and public watchdog also applies to matters of foreign and
financial policy and that the protection of confidentiality of diplomatic relations, although
justified, could not be secured at any price. The publication of the report did not undermine the
very foundations of Switzerland. The Court therefore believes that the interests deriving from
freedom of expression in a democratic society could legitimise the public discussion brought
about by the document, initially classified as confidential. Fining Stoll for revealing the content
of the document had amounted to a kind of censorship which would be likely to discourage him
from expressing criticism of that kind again in the future. The Strasbourg Court considers the
conviction of Stoll by the Swiss judiciary as liable to hamper the press in performing its task as
purveyor of information and public watchdog. Furthermore, as Stoll had only been convicted for
publishing parts of the document in the newspaper, the European Court believes the finding by
the Swiss Press Council that he had neglected his professional ethics by presenting some extracts
in a sensationalist way, should not be taken into account to determine whether or not publishing
the document was legitimate. The Court once more underlines that press freedom also covers
possible recourse to a degree of exaggeration, or even provocation. The dissenting opinion from
Judges Wildhaber, Borrego Borrego and Šikuta emphasises the importance of respecting official
secrets and Stoll’s lack of professionalism in ignoring some fundamental rules of journalistic
ethics. The dissenting judges also consider it as an important element that the articles at hand had
not contributed in a useful way to the public debate on the issue of the unclaimed assets
deposited in Swiss Banks. The majority of the Court however held that there has been a violation
of Article 10 of the Convention, as Stoll’s conviction was not necessary in a democratic society,
157
having regard to the interest of a democratic society in ensuring and maintaining the freedom of
the press.
•
Stoll v. Switzerland, no. 69698/01, 25 April 2006.
on 10 December 2007.
IRIS 2006-6/2
158
European Court of Human Rights: Case of Dammann v. Switzerland
Dirk Voorhoof
In a judgment of 25 April 2006, the Court unanimously held that the Swiss authorities violated
Article 10 of the Convention by convicting a journalist, Viktor Dammann, for inciting an
administrative assistant of the public prosecutor’s office to disclose confidential data. The
assistant had forwarded data relating to criminal records of suspects in a spectacular robbery. By
punishing the journalist in this case, a step had been taken prior to publication and such a
sentence would be likely to deter journalists from contributing to public discussion of issues
affecting the life of the community. It was thus likely to hamper the press in its role as provider
of information and public watchdog. Furthermore, no damage had been done to the rights of the
persons concerned, as the journalist had himself decided not to publish the data in question. In
these circumstances, the Court considered that Dammann’s conviction had not been reasonably
proportionate to the pursuit of the legitimate aim in question, having regard to the interest of a
democratic society in ensuring and maintaining the freedom of the press.
•
Dammann v. Switzerland, no. 77551/01, 25 April 2006.
IRIS 2006-6/3
159
European Court of Human Rights: Case of Tatlav v. Turkey
Dirk Voorhoof
In 1992, Erdoğan Aydin Tatlav, a journalist living in Istanbul, published a five volume book
under the title Islamiyet Gerçeği (The Reality of Islam). In the first volume of the book he
criticised Islam as a religion legitimising social injustice by portraying it as “God’s will”.
Following a complaint on the occasion of the fifth edition of the book in 1996, the journalist was
prosecuted for publishing a work intended to defile one of the religions (Art. 175 of the Criminal
Code). He was sentenced to one year’s imprisonment, which was reduced to a fine.
Tatlav complained before the European Court of Human Rights that this conviction was in
breach of Article 10 of the Convention, referring to the right of freedom of expression “without
interference by public authority”. Essentially, the Court assessed whether the interference in the
applicant’s right in view of protecting the morals and the rights of others could be legitimised as
“necessary in a democratic society”. The Court is of the opinion that certain passages of the book
contained strong criticism of religion in a socio-political context, but that these passages had no
insulting tone and did not contain an abusive attack on Muslims or on sacred symbols of Muslim
religion (see [I.A. v. Turkey] IRIS 2005-10: 3). The Court did not exclude that Muslims could
nonetheless feel offended by the caustic commentary on their religion, but this was not
considered to be a sufficient reason to justify the criminal conviction of the author of the book.
The Court also took account of the fact that although the book had first been published in 1992,
no proceedings had been instituted until 1996, when the fifth edition was published. It was only
following a complaint by an individual that proceedings had been brought against the journalist.
With regard the punishment imposed on Tatlav, the Court is of the opinion that a criminal
conviction involving, moreover, the risk of a custodial sentence, could have the effect of
discouraging authors and editors from publishing opinions about religion that are non-conformist
and could impede the protection of pluralism, which is indispensable for the healthy
development of a democratic society. Taking into consideration all these elements of the case,
the Strasbourg Court considers the interference by the Turkish authorities disproportionate to the
aims pursued. Consequently, the Court holds unanimously that there has been a violation of
Article 10 of the Convention (see IRIS 2006-4: 2).
•
Aydın Tatlav v. Turkey, no. 50692/99, 2 May 2006.
IRIS 2006-7/2
160
European Court of Human Rights: Case of Erbakan v. Turkey
Dirk Voorhoof
The European Court of Human Rights held by six votes to one that the criminal proceedings
instituted in 1998 against the leader of a political party - because of a public speech during an
election campaign in 1994 - and the ensuing sentence of imprisonment delivered by the State
Security Court, had been a violation of Article 10 of the European Convention on Human Rights.
In its judgment, the Court especially considered the interest of a democratic society in ensuring
and maintaining freedom of political debate. The Court also found there was a breach of Article
6 § 1 of the Convention, as civilians standing trial for offences under the Criminal Code had
legitimate reason to fear that a State Security Court which included a military judge among its
members might not be independent and impartial.
The case concerns the application of Necmettin Erbakan, who was Prime Minister of Turkey
from June 1996 to June 1997. In 1997 and 1998, he was the chairman of Refah Partisi (the
Welfare Party), a political party which was dissolved in 1998 for engaging in activities contrary
to the principles of secularism (see also ECHR, 13 February 2003). In February 1994, the
applicant gave a public speech in Bingöl, a city in south-east Turkey. More than four years later
criminal proceedings were brought against Erbakan for incitement to hatred or hostility through
comments made in his 1994 speech about distinctions between religions, races and regions
(Article 312 § 2 of the Criminal Code). The applicant contested the accusations against him, in
particular disputing the authenticity and reliability of a video cassette, produced by the public
prosecutor’s office, containing a recording of the speech. In March 2000, the State Security
Court convicted Erbakan and sentenced him to one year’s imprisonment and a fine. In reaching
its judgment, the State Security Court took into account the situation at the material time in the
city of Bingöl, where the inhabitants had been victims of terrorist acts perpetrated by an
extremist organisation. It concluded that the applicant, in particular by making a distinction
between “believers” and “non-believers”, had overstepped the acceptable limits of freedom of
political debate. A few months later, the Court of Cassation dismissed the applicant’s appeal on
points of law and upheld the conviction. In January 2001, pursuant to Laws no. 4454 and 4616,
the State Security Court stayed the execution of the sentence, a decision which was confirmed by
the Court of Diyarbakir in April 2005.
Relying on Article 10 of the Convention, the applicant complained before the European Court of
Human Rights that his conviction had infringed his right to freedom of expression.
In its judgment of 6 July 2006, the Court held that by using religious terminology in his
speech,Erbakan had indeed reduced diversity - a factor inherent in any society - to a simple
division between “believers” and “non-believers” and had called for a political line to be formed
on the basis of religious affiliation. The Court also pointed out that combating all forms of
intolerance and hate speech was an integral part of human rights protection and that it was
crucially important that politicians avoid making comments in their speeches likely to foster such
intolerance. However, in view of the fundamental nature of freedom of political debate in a
161
democratic society, a severe penalty in relation to political speech can only be justified by
compelling reasons. The Court noted in this perspective that the Turkish authorities had not
sought to establish the content of the speech in question until five years after the rally, and had
done so purely on the basis of a video recording the authenticity of which was disputed. The
Court concluded that it was particularly difficult to hold the applicant responsible for all the
comments cited in the indictment. Furthermore, it had not been established that the speech had
given rise to, or been likely to give rise to, a “present risk” and an “imminent danger”. Also
taking into account the severity of the one year’s imprisonment sentence, the Court found that
the interference in the applicant’s freedom of expression had not been necessary in a democratic
society. The Court accordingly held that there had been a violation of Article 10.
•
Erbakan v. Turkey, no. 59405/00, 6 July 2006.
IRIS 2006-8/1
162
European Court of Human Rights: Case of Sdružení Jihočeské Matky v. Czech Republic
Dirk Voorhoof
The European Court of Human Rights has, on several occasions, recognised “the right of the
public to be properly informed” and “the right to receive information”, but until recently the
Court was very reluctant to derive from Article 10 of the European Convention on Human Rights
a right to have access to public or administrative documents. In the cases of Leander v. Sweden
(1987), Gaskin v. United Kingdom (1989) and Sîrbu v. Moldova (2004)), the Strasbourg Court
has indeed recognised “that the public has a right to receive information as a corollary of the
specific function of journalists, which is to impart information and ideas on matters of public
interest”. However, the Court was of the opinion that the freedom to receive information
basically prohibits a government from restricting a person from receiving information that others
wish or may be willing to impart to that person. It was decided in these cases that the freedom to
receive information as guaranteed by Article 10 could not be construed as imposing on a State a
positive obligation to disseminate information or to disclose information to the public.
In a recent decision (10 July 2006) on an application’s admissibility, the European Court of
Human Rights has, for the first time, applied Article 10 of the Convention in a case where a
request for access to administrative documents was refused by the authorities. The case concerns
a refusal to grant an ecological NGO access to documents and plans regarding a nuclear power
station in Temelin, Czech Republic. Although the Court is of the opinion that there has not been
a breach of Article 10, it explicitly recognised that the refusal by the Czech authorities is to be
considered as an interference with the right to receive information as guaranteed by Article 10 of
the Convention. Hence, the refusal must meet the conditions set out in Article 10 para. 2. In the
case of Sdružení Jihočeské Matky v. Czech Republic, the Court refers to its traditional case law,
emphasising that the freedom to receive information “aims largely at forbidding a State to
prevent a person from receiving information which others would like to have or can consent to
provide”. The Court is also of the opinion that it is difficult to derive from Article 10 a general
right to have access to administrative documents, The Court, however, recognises that the refusal
to grant access to administrative documents, in casu relating to a nuclear power station, is to be
considered as an interference in the applicant’s right to receive information. Because the Czech
authorities have reasoned in a pertinent and sufficient manner the refusal to grant access to the
requested documents, the Court is of the opinion that there has been no breach of Article 10 para.
2 of the Convention in this case. The refusal was justified in the interest of protecting the rights
of others (industrial secrets), national security (risk of terrorist attacks) and public health. The
Court also emphasised that the request to have access to essentially technical information about
the nuclear power station did not reflect a matter of public interest. For these reasons, it was
obvious that there had not been an infringement of Article 10 of the Convention, thus, the Court
declared the application inadmissible.
The ruling in the case of Sdružení Jihočeské Matky is nonetheless important as it contains an
explicit and undeniable recognition of the application of Article 10 in cases of a rejection of a
request for access to public or administrative documents. The right to access administrative
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documents is not an absolute one and can indeed be restricted under the conditions of Article 10
para. 2, which implies that such a rejection must be prescribed by law, have a legitimate aim and
must be necessary in a democratic society. The Court’s decision of 10 July 2006 gives additional
support and opens new perspectives for citizens, journalists and NGOs for accessing
administrative documents in matters of public interest.
•
Sdružení Jihočeské Matky v. Czech Republic (dec.), no. 19101/03, 10 July 2006.
IRIS 2006-9/1
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European Court of Human Rights: Case of Monnat v. Switzerland
Dirk Voorhoof
In a judgment of 21 September 2006, the European Court of Human Rights has come to the
conclusion that the Swiss authorities have violated the freedom of expression of a journalist by
placing a programme broadcast by the Swiss Public Broadcasting Corporation SSR under a legal
embargo. In 1997, the SSR broadcast a critical documentary on the position of Switzerland
during the Second World War. The documentary was part of a news programme, entitled Temps
présent (“Present time”), for which the applicant, Daniel Monnat, was then responsible. The
programme described the attitude of Switzerland and of its leaders, emphasising their alleged
affinity with the far right and their penchant for a rapprochement with Germany. It also
contained an analysis of the question of anti-Semitism in Switzerland and of its economic
relations with Germany, focusing on the laundering of Nazi money by Switzerland and on the
role of Swiss banks and insurance companies in the matter of unclaimed Jewish assets. The
programme elicited reactions from members of the public. Viewers’ complaints, within the
meaning of section 4 of the Federal Broadcasting Act, were filed with the Autorité indépendante
d’examen des plaintes en matière de radiotélévision (Independent Broadcasting Complaints
Commission). The Complaints Commission was of the opinion that the programme had breached
the duty to report objectively in such a way as to reflect the plurality and diversity of opinion.
The Complaints Commission found against the SSR and requested the broadcasting company to
take appropriate measures. The Commission particularly found that the method used, namely
politically engaged journalism, had not been identified as such. The News Editors’ Conference
of SSR informed the Complaints Commission that it had taken note of its decisions and would
take them into account when dealing with sensitive issues. Being satisfied with the measures, the
Commission declared the proceedings closed. In the meantime, the registry of the court of
Geneva decided to place the programme under a legal embargo, which led to the suspension of
the sale of videotapes of the programme.
Mr. Monnat alleged before the European Court of Human Rights that the programme scrutiny
introduced by Swiss law and the decision of the Complaints Commission, upheld by the Federal
Court, had hampered him in the exercise of his freedom of expression, as provided for by Article
10 of the European Convention on Human Rights. The Court dismissed the applicant’s complaint
as to the inappropriateness of the programme scrutiny introduced by the Federal Broadcasting
Act, because he was challenging general legal arrangements in abstract terms. However, in his
capacity as a programme-maker he could claim to be the victim of a violation of the Convention
because of the legal embargo.
The Strasbourg Court noted that the impugned programme had undoubtedly raised a question of
major public interest, at a time when Switzerland’s role in the Second World War was a popular
subject in the Swiss media and divided public opinion in that country. As regards the journalist’s
duties and responsibilities, the Court was not convinced that the grounds given by the Federal
Court had been “relevant and sufficient” to justify the admission of the complaints, even in the
case of information imparted in a televised documentary on a state-owned television channel. As
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to the sanctions imposed in this case, the Court noted that whilst they had not prevented the
applicant from expressing himself, the admission of the complaints had nonetheless amounted to
a kind of censorship, which would be likely to discourage him from making criticisms of that
kind again in future. In the context of debate on a subject of major public interest, such a
sanction would be likely to deter journalists from contributing to public discussion of issues
affecting the life of the community. By the same token, it was liable to hamper the media in
performing their task as purveyor of information and public watchdog. Moreover, the censorship
had subsequently taken on the form of a legal embargo on the documentary, formally prohibiting
the sale of the product in question. For these reasons, the Court considered that there had been a
•
Monnat v. Switzerland, no. 73604/01, ECHR 2006-X.
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European Court of Human Rights: Case of White v. Sweden
Dirk Voorhoof
In 1996, the two main evening newspapers in Sweden, Expressen and Aftonbladet , published a
series of articles in which various criminal offences were ascribed to Anthony White, a British
citizen residing in Mozambique. The articles also included an assertion that he had murdered
Olof Palme, the Swedish Prime Minister, in 1986. Mr White was a well-known figure whose
alleged illegal activities had already been at the centre of media attention. The newspapers also
reported statements of individuals who rejected the allegations made against Mr White. In an
interview published in Expressen , Mr White denied any involvement in the alleged offences.
Mr White brought a private prosecution against the editors of the newspapers for defamation
under the Freedom of Press Act and the Swedish Criminal Code. The District Court of
Stockholm acquitted the editors and found that it was justifiable to publish the statements and
pictures, given that there was considerable public interest in the allegations. It further considered
that the newspapers had a reasonable basis for the assertions and that they had performed the
checks that were called for in the given circumstances, taking into regard the constraints of a fast
news service. The Court of Appeal upheld the District Court’s decision.
Mr White complained before the European Court of Human Rights in Strasbourg that the
Swedish courts had failed to provide due protection for his name and reputation. He relied on
Article 8 (right to respect for private and family life) of the Convention. The European Court
found that a fair balance must be struck between the competing interests, namely freedom of
expression (Article 10) and the right to respect for privacy (Article 8), also taking into account
that under Article 6 § 2 of the Convention individuals have a right to be presumed innocent of
any criminal offence until proven guilty in accordance with the law. The Court first noted that as
such the information published in both newspapers was defamatory. The statements clearly
tarnished his reputation and disregarded his right to be presumed innocent until proven guilty as
it appeared that Mr. White had not been convicted of any of the offences ascribed to him.
However in the series of articles, the newspapers had endeavoured to present an account of the
various allegations made which was as balanced as possible and the journalists had acted in good
faith. Moreover, the unsolved murder of the former Swedish Prime Minister Olof Palme and the
ongoing criminal investigations were matters of serious public interest and concern. The
Strasbourg Court considered that the domestic courts made a thorough examination of the case
and balanced the opposing interests involved in conformity with Convention standards. The
European Court found that the Swedish courts were justified in finding that the public interest in
publishing the information in question outweighed Mr White’s right to the protection of his
reputation. Consequently, there had been no failure on the part of the Swedish State to afford
adequate protection of the applicant’s rights. For these reasons, the Court considered that there
had been no violation of Article 8.
•
White v. Sweden, no. 42435/02, 19 September 2006.
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IRIS 2006-10/3
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European Court of Human Rights: Case of Klein v. Slovakia
Dirk Voorhoof
In March 1997, the weekly magazine Domino Efekt published an article written by Martin Klein,
a journalist and film critic. In this article, Klein criticised Archbishop Ján Sokol’s televised
proposal to halt the distribution of the film “The People v. Larry Flint” and to withdraw the
poster advertising it. The article contained slang terms and innuendos with oblique vulgar and
sexual connotations, allusions to the Archbishop’s alleged cooperation with the secret police of
the former communist regime and an invitation to the members of the Catholic Church to leave
their church.
On complaints filed by two associations, criminal proceedings were brought against Klein. The
journalist was convicted of public defamation of a group of inhabitants of the Republic for their
belief. For this criminal offence, he was sentenced to a fine of EUR 375, in application of Article
198 of the Slovakian Criminal Code. The Regional Court of Košice considered the article in
question as vulgar, ridiculing and offending, hence not eligible for protection under Article 10 of
the European Convention. It concluded that the content of Klein’s article had violated the rights,
guaranteed by the Constitution, of a group of adherents to the Christian faith.
Contrary to the domestic courts’ findings, the European Court of Human Rights was not
persuaded that the applicant had discredited and disparaged a section of the population on
account of their Catholic faith. The applicant’s strongly-worded pejorative opinion related
exclusively to the Archbishop, a senior representative of the Catholic Church in Slovakia. The
fact that some members of the Catholic Church could have been offended by the applicant’s
criticism of the Archbishop and by the statement that he did not understand why decent Catholics
did not leave that Church could not affect that position. The Court accepts the applicant’s
argument that the article neither unduly interfered with the right of believers to express and
exercise their religion, nor denigrated the content of their religious faith. Given that the article
exclusively criticised the person of the Archbishop, convicting the applicant of defamation of
others’ beliefs was in itself inappropriate in the particular circumstances of the case.
For those reasons, and despite the vulgar tone of the article, the Court found that it could not be
concluded that by publishing the article the applicant had interfered with the right to freedom of
religion of others in a manner justifying the sanction imposed on him. The interference with his
right to freedom of expression therefore neither corresponded to a pressing social need, nor was
it proportionate to the legitimate aim pursued. The Court held unanimously that the interference
with the applicant’s right to freedom of expression was not “necessary in a democratic society”
and that there had been a violation of Article 10 of the European Convention.
•
Klein v. Slovakia, no. 72208/01, 31 October 2006.
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European Court of Human Rights: Case of Leempoel & S.A. Ed. Ciné Revue v. Belgium
Dirk Voorhoof
In a judgment of 9 November 2006, the European Court of Human Rights found no violation of
freedom of expression in a case concerning the withdrawal from sale and ban on distribution of
an issue of the Belgian weekly magazine Ciné Télé Revue. On 30 January 1997, the magazine
published an article containing extracts from the preparatory file and personal notes that an
investigating judge, D., had handed to a parliamentary commission of inquiry. The article was
advertised on the front cover of the magazine via the headline, which was superimposed on a
photograph of the judge. The disclosures received substantial press coverage, as the issue was
related to the “Dutroux case” and the manner in which the police and the judiciary had handled
the investigations into the disappearance, kidnapping, sexual abuse and murder of several
children.
Following a special judicial procedure for urgent applications before a judge in Brussels,
investigating judge D. obtained an injunction for the magazine editor and its publisher to take all
necessary steps to remove every copy of the magazine from sales outlets and the prohibition of
the subsequent distribution of any copy featuring the same cover and the same article. The court
order was based on the grounds that the published documents were subject to the rules on
confidentiality of parliamentary inquiries and that their publication appeared to have breached
the right to due process and also the judge’s right to respect for her private life.
In an application before the European Court of Human Rights, the applicants complained that the
ruling against them infringed Article 10 of the Convention and they maintained that Article 25 of
the Belgian Constitution, which forbids censorship of the press, afforded a greater degree of
protection than Article 10 of the Convention and that its application should accordingly have
been safeguarded by Article 53 of the Convention (the Convention’s rights and freedoms being
“minimum rules”).
The Court noted that although the offending article was related to a subject of public interest, its
content could not be considered as serving the public interest. Moreover, the parliamentary
commission’s hearings had already received significant media exposure, including via live
broadcasts on television. The Court found that the article in question contained criticism that was
especially directed against the judge’s character and that it contained in particular a copy of
strictly confidential correspondence which could not be regarded as contributing in any way to a
debate of general interest to society. The use of the file handed over to the commission of inquiry
and the comments made in the article had revealed the very essence of the “system of defence”
that the judge had allegedly adopted or could have adopted before the commission. The Court is
of the opinion that the adoption of such a “system of defence” belonged to the “inner circle” of a
person’s private life and that the confidentiality of such personal information had to be
guaranteed and protected against any intrusion. As the Court found that the article in question
and its distribution could not be regarded as having contributed to any debate of general interest
to society it considered that the grounds given by the Belgian courts to justify the ban on the
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distribution of the litigious issue of the magazine were relevant and sufficient and that the
interference with the applicants’ right to freedom of expression was proportionate to the aim
pursued. The Court considered that such interference could be seen as “necessary in a democratic
society” and did not amount to a violation of Article 10.
With regard to the alleged negligence to apply Article 53, the Court referred back to its finding
that the interference in question had been “prescribed by law” and further observed that the
decision to withdraw the magazine from circulation did not constitute a pre-publication measure
but, having been taken under the special procedure for urgent applications, sought to limit the
extent of damage already caused. As such interference was not considered by the Belgian Court
of Cassation as a form of censorship, the European Court did not consider it necessary to
examine separately the complaint under Article 53 based on an alleged breach of Article 25 of
the Belgian Constitution.
•
Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, 9 November 2006.
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European Court of Human Rights: Case of Radio Twist v. Slovakia
Dirk Voorhoof
In a judgment of 19 December 2006, the European Court of Human Rights considered the
sanctioning of a radio station to be a violation of freedom of expression as guaranteed by Article
10 of the Convention. The applicant, Radio Twist is a radio broadcasting company that was
convicted for broadcasting the recording of a telephone conversation between the State Secretary
at the Ministry of Justice and the Deputy Prime Minister in a news programme. The recording
was accompanied by a commentary, clarifying that the recorded dialogue related to a politically
influenced power struggle in June 1996 between two groups which had an interest in the
privatisation of a major national insurance provider. Mr. D., the Secretary at the Ministry of
Justice subsequently filed a civil action against Radio Twist for protection of his personal
integrity. He argued that Radio Twist had broadcast the telephone conversation despite the fact
that it had been obtained in an illegal manner. Radio Twist was ordered by the Slovakian courts
to offer Mr. D. a written apology and to broadcast that apology within 15 days. The broadcasting
company was also ordered to pay compensation for damage of a non-pecuniary nature, as the
Slovakian courts considered that the dignity and reputation of Mr. D. had been tarnished. This
was, in particular, related to the broadcasting of the illegally tapped conversation, which was
considered an unjustified interference in the personal rights of Mr. D., as the protection of
privacy also extends to telephone conversations of public officials.
The Strasbourg Court however disagreed with these findings of the Slovakian Courts. Referring
to the general principles that the European Court of Human Rights has developed in its case law
regarding freedom of expression in political matters, regarding the essential function of the press
in a democratic society, and regarding the limits of acceptable criticism of politicians, the Court
emphasised that the context and content of the recorded conversation was clearly political and
that the recording and commentary contained no aspects relevant to the concerned politician’s
private life. Furthermore, the Court referred to the fact that the news reporting by Radio Twist
did not contain untrue or distorted information and that the reputation of Mr. D. seemed not to
have been tarnished by the impugned broadcast, as he was shortly afterwards elected as a judge
of the Constitutional Court. The Court points out that Radio Twist was sanctioned mainly due to
the mere fact of having broadcast information that had been illegally obtained by someone else
who had forwarded this to the radio station. The Court was, however, not convinced that the
mere fact that the recording had been obtained by a third person contrary to the law could
deprive the broadcasting company of the protection afforded by Article 10 of the Convention.
The Court also noted that it was, at no stage, alleged that the broadcasting company or its
employees or agents were in any way liable for the recording or that its journalists transgressed
criminal law while obtaining or broadcasting it. The Court observed that there was no indication
that the journalists of Radio Twist acted in bad faith or that they pursued any objective other than
reporting on matters which they felt obliged to make available to the public. For these reasons,
the Court concluded that by broadcasting the telephone conversation in question, Radio Twist
did not interfere with the reputation and rights of Mr. D. in a manner that could justify the
sanction imposed upon it. Hence the interference with its rights to impart information did not
172
correspond to a pressing social need. The interference was not necessary in a democratic society,
thus it amounted to a violation of Article 10 of the Convention.
•
Radio Twist a.s. v. Slovakia, no. 62202/00, ECHR 2006-XV.
IRIS 2007-3/2
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European Court of Human Rights: Case of Mamère v. France
Dirk Voorhoof
On 11 October 2000, the Paris Criminal Court found Mr. Noël Mamère, a leading member of the
ecologist party Les Verts and Member of Parliament, guilty of having publicly defamed Mr.
Pellerin, the director of the Central Service for Protection against Ionising Radiation (SCPRI).
Mr. Mamère was ordered to pay a fine of FRF 10,000 (app. EUR 1,525). The Paris Court of
Appeal upheld the conviction considering that Mr. Mamère’s comments during a television
programme were defamatory as they had compromised Mr. Pellerin’s “honour and reputation”
by accusing him of repeatedly having “knowingly provided, in his capacity as a specialist on
radioactivity issues, erroneous or simply untrue information about such a serious problem as the
Chernobyl disaster, which could potentially have had an impact on the health of the French
population”. The Court found that Mr. Mamère had not acted in good faith, as he had not
adopted a moderate tone in insisting forcefully and peremptorily that Mr. Pellerin had repeatedly
sought to lie and to distort the truth about the consequences of the Chernobyl nuclear accident
(the latter occurred in the spring of 1986). Mr. Mamère had also attributed “pejorative
characteristics” to Mr. Pellerin by using the adjective “sinister” and by saying that he suffered
from “the Asterix complex”. In May 2006, following a complaint by certain individuals suffering
from thyroid cancer, the Commission for Research and Independent Information on
Radioactivity (CRIIRAD) and the French Association of Thyroid Disease Sufferers (AFMT)
recognised that the official services at the time had lied and had underestimated the
contamination of soil, air and foodstuffs following the Chernobyl disaster.
In its judgment of 7 November 2006, the Strasbourg Court observed that the conviction of Mr.
Mamère for aiding and abetting public defamation of a civil servant had constituted an
interference with his right to freedom of expression as guaranteed in the Freedom of the Press
Act of 29 July 1881. It also considered that it had pursued one of the legitimate aims listed in
Article 10 § 2, namely the protection of the reputation of others (in this case the reputation of Mr
Pellerin). The Court, however, considered the interference as not necessary in a democratic
society, as the case obviously was one in which Article 10 required a high level of protection of
the right to freedom of expression. The Court underlined that the applicant’s comments
concerned topics of general concern, namely the protection of the environment and of public
health. Mr. Mamère had also been speaking in his capacity as an elected representative
committed to ecological issues, so that his comments were to be regarded as being a political or
“militant” expression. The Court reiterated that those who have been prosecuted on account of
their comments on a matter of general concern should have the opportunity to absolve
themselves of liability by establishing that they have acted in good faith and, in the case of
factual allegations, by proving that they were true. In the applicant’s case, the comments made
were value judgments as well as factual allegations, so the applicant should have been offered
both those opportunities. As regards the factual allegations, since the acts criticised by the
applicant had occurred more than ten years earlier, the 1881 Freedom of the Press Act barred
him from proving that his comments were true. While in general the Court could see the logic of
such a prescription, it considered that where historical or scientific events were concerned, it
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might on the contrary be expected that over the course of time the debate would be enriched by
new information that could improve people’s understanding of reality. Furthermore, the Court
was not persuaded by the reasoning of the French Court as to Mr. Mamère’s lack of good faith
and the insulting character of some of his statements. According to the Strasbourg Court, Mr.
Mamère’s comments could be considered sarcastic but they remained within the limits of
acceptable exaggeration or provocation. Furthermore, the question of Mr. Pellerin’s personal and
“institutional” liability was an integral part of the debate on a matter of general concern: as
director of the SCPRI he had had access to the measures being taken and had on several
occasions made use of the media to inform the public of the level of contamination, or rather,
one might say, the lack of it, within the territory of France. In those circumstances, and
considering the extreme importance of the public debate in which the comments had been made,
Mr. Mamère’s conviction for defamation could not be said to have been proportionate and hence
“necessary in a democratic society”. The Court therefore held that there had been a violation of
Article 10.
•
Mamère v. France, no. 12697/03, ECHR 2006-XIII.
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European Court of Human Rights: Case of Österreichischer Rundfunk v. Austria
Dirk Voorhoof
In a judgment of 7 December 2006, the European Court of Human Rights found that the Austrian
authorities had acted in violation of the right to freedom of expression. The case concerned a
reaction to a news item on the Austrian public television channel Österreichischer Rundfunk
(ORF). In a news programme broadcast by ORF in 1999, a picture was shown of a person, Mr. S,
who had been released on parole a few weeks earlier. Mr. S. was convicted to eight years
imprisonment in 1995 because he had been found to be a leading member of a neo-Nazi
organisation. At the request of Mr. S., the Austrian courts prohibited ORF from showing his
picture in connection with any report stating that he had been convicted under the Verbotsgesetz
(National Socialist Prohibition Act) either once the sentence had been executed or once he had
been released on parole. The courts found that the publication of Mr. S.’s picture in that context
had violated his legitimate interests within the meaning of both Section 78 of the Copyright Act
and Section 7a of the Media Act (“right to one’s image”).
The ORF complained in Strasbourg that the Austrian courts’ decisions violated its right to
freedom of expression as provided in Article 10 of the European Convention on Human Rights.
Despite its being a public broadcasting organisation, the European Court of Human Rights was
of the opinion that ORF does not qualify as a governmental organisation and hence may claim to
be a “victim” of an interference by the Austrian authorities in its right to freedom of expression,
within the meaning of articles 34 and 35 of the Convention (see IRIS 2004-5: 3). Referring inter
alia to the guarantee of the ORF’ s editorial and journalistic independence and its institutional
autonomy as a provider of a public service, the Court was of the opinion that the ORF does not
fall under government control. As to the question of the prohibition to show Mr. S.’s picture in
the context of his conviction under the Prohibition Act, the Court took into account several
elements: the Court referred to the position of the ORF as a public broadcaster with an obligation
to cover any major news item in the field of politics, to Mr. S.’s position as a well-known
member of the neo-Nazi scene in Austria and to the nature and subject-matter of the news report,
the latter being of relevance to the public interest. The Court furthermore underlined the fact that
the injunction granted by the domestic courts was phrased in very broad terms and that the news
item on ORF referred to persons recently released on parole after having been convicted of
crimes with a clear political relevance. Taking into account all these elements the Strasbourg
Court found that the reasons adduced by the Austrian courts to justify the injunction were not
relevant and sufficient to warrant the interference in ORF’ s right to freedom of expression.
Thus, there had been a violation of Article 10.
•
Österreichischer Rundfunk v. Austria, no. 35841/02, 7 December 2006.
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European Court of Human Rights: Case of Nikowitz and Verlagsgruppe News GmbH v.
Austria
Dirk Voorhoof
In a judgment of 22 February 2007, the European Court of Human Rights (ECHR) considered
the convictions of both a journalist and a publishing company as being violations of the right to
freedom of expression as guaranteed by Article 10 of the Convention. The case concerned an
article in the magazine Profil about a road accident in which the well-known Austrian skiing
champion, Hermann Maier, injured his leg. The article, written by the journalist Rainer
Nikowitz, suggested that one of Mr. Maier’s competitors, the Austrian skiing champion Stephan
Eberharter, was pleased with the accident because he would finally be able to win something,
and that he even hoped his competitor would break his other leg too. The article was satirical and
was written in response to public hysteria following the accident. It was accompanied by a
portrait of Mr. Maier together with the caption: “Hero Hermann’s leg is causing millions of
Austrians pain”.
Subsequently, Mr. Eberharter brought a private prosecution for defamation against Mr. Nikowitz
and a compensation claim under the Mediengesetz (Media Act) against the publishing company.
In 2001, the Vienna Landesgericht (Regional Criminal Court) found Mr. Nikowitz and the
publishing company guilty of defamation. Apart from the order to pay a suspended fine, costs
and compensation for damages, the Court also ordered Verlagsgruppe News to publish extracts
of the judgment. Mr. Nikowitz and Verlagsgruppe News appealed unsuccessfully to the Vienna
Court of Appeal, which found that the satirical meaning of the article would be lost on the
average reader, and that the personal interests of Mr. Eberharter outweighed the right to freedom
of artistic expression.
The European Court of Human Rights, however, approached the case from another perspective,
emphasising that the article in question dealt with an incident that had already attracted the
attention of the Austrian media, and that it was written in an ironic and satirical style and
intended as a humorous commentary. The article also sought to make a critical contribution to an
issue of general interest, namely the attitude of society towards a sports star. It could, at most, be
understood as the author’s value judgment of Mr. Eberharter’s character, expressed in the form
of a joke. According to the ECHR, the article remained within the limits of acceptable satirical
comment in a democratic society. The Court was also of the opinion that the Austrian courts
showed no moderation in interfering with the applicant’s rights by convicting the journalist of
defamation and ordering him to pay a fine, and by ordering the publishing company to pay
compensation and to publish the judgment. It followed that the interference under complaint was
not “necessary in a democratic society” and therefore there had been a violation of Article 10.
•
Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, 22 February 2007.
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European Court of Human Rights: Case of Tønsberg Blad AS and Marit Haukom v.
Norway
Dirk Voorhoof
In 2000, the Norwegian newspaper Tønsberg Blad published an article about a list drafted by the
Municipal Council of Tjøme. The list identified property owners suspected of breaching
permanent residence requirements applying to certain properties. The article referred to a wellknown singer and a well-known businessman (Mr. Rygh) stating that they might be “forced to
sell their properties at Tjøme”. The article included a small photo of Mr. Rygh with the caption:
“it must be due to a misunderstanding, says Tom Vidar Rygh”. A few weeks later, after being
informed that the Rygh family’s property had been removed from the list, the newspaper
published an additional article, which noted that Mr. Vidar Rygh and the singer had “got off” the
list. The newspaper criticised the fact there were “major loopholes” in the system, in that the
regulations did not apply to houses that had been built by the owners. In a further article, entitled
“Tønsberg Blad clarifies”, the paper stated that the properties belonging to the singer and the
Rygh family had been removed from the list in question, as the regulations did not apply to their
properties.
Mr. Rygh brought private criminal proceedings against the newspaper and its editor-in-chief,
Mrs. Haukom. Under Article 253 of the Penal Code (defamation), Lagmannsrett (the High
Court) declared the impugned statements to be null and void and ordered the publishing firm and
the editor-in-chief to pay Mr. Rygh NOK 50,000 in compensation for non-pecuniary damage.
The Court was of the opinion that there had not been sufficient evidence for the allegations
against Mr. Rygh. The Supreme Court upheld the conviction and ordered Tønsberg Blad and
Haukom to pay Mr Rygh NOK 673,879 for costs.
In their case taken before the European Court of Human Rights,Tønsberg Bladand Haukom
complained, under Article 10 of the Convention, that the Norwegian Courts’ decisions had
entailed an interference with their right to freedom of expression that could not be regarded as
necessary in a democratic society.
The ECHR, in the first place, found that the purpose of the article was to illustrate a problem
about which the public had an interest in being informed. Indeed, a possible failure of a public
figure to observe laws and regulations aimed at protecting serious public interests, even in the
private sphere, might in certain circumstances constitute a matter of legitimate public interest.
The Court recalled that protection of the right of journalists to impart information on issues of
general interest required that they act in good faith and on an accurate factual basis and provide
“reliable and precise” information in accordance with the ethics of journalism. Even though the
news item had been presented in a somewhat sensationalist style, the overall impression given by
the newspaper report was that, rather than inviting the reader to reach any foregone conclusion
about any failure on Mr. Rygh’s part, it had raised question marks with respect to both whether
he had breached the requirements in question, and whether those requirements should be
maintained, modified or repealed. The ECHR was of the opinion that the overall news coverage
178
by Tønsberg Blad on that matter was presented in a balanced way and that the disputed
allegations were presented with precautionary qualifications. The Court does not find that the
impugned accusation was capable of causing such injury to personal reputation as could weigh
heavily in the balancing exercise to be carried out under the necessity test in Article 10 § 2 of the
Convention.
As to the question of whether the applicants had acted in good faith and complied with the
ordinary journalistic obligation to verify a factual allegation, the European Court found
substantial evidence to corroborate the newspaper’s contention that the Municipality at the time
held the view that Mr. Rygh was in breach of the relevant residence requirements.The journalist
could not in the Court’s opinion be blamed for not having ascertained for himself, whether the
residence requirements were applicable to Mr. Rygh’s property. On the contrary, in view of the
relatively minor nature and limited degree of the defamation at issue and the important public
interests involved, the Court was satisfied that the newspaper had taken sufficient steps to verify
the truth of the disputed allegation and acted in good faith.
However, the applicants had had to face judicial defamation proceedings pursued at three levels.
These proceedings had led to their statements being declared null and void and to their being
ordered to pay the plaintiff NOK 50,000 in compensation for non-pecuniary damage and to
reimburse him NOK 673,829 for his legal expenses, in addition to bearing their own costs. In the
circumstances, the proceedings had resulted in an excessive and disproportionate burden being
placed on the applicants, which was capable of having a chilling effect on press freedom in the
relevant State.
The ECHR came to the conclusion that the reasons relied on by the Norwegian authorities,
although relevant, were not sufficient to show that the interference complained of had been
“necessary in a democratic society”. The Court considered that there had been no reasonable
relationship of proportionality between the restrictions placed by the measures applied by the
Supreme Court on the applicants' right to freedom of expression and the legitimate aim pursued.
Accordingly, there has been a violation of Article 10 of the Convention.
•
Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, 1 March 2007.
IRIS 2007-5/101
179
European Court of Human Rights: Case of Colaço Mestre and SIC v. Portugal
Dirk Voorhoof
The European Court of Human Rights has once again ruled in favour of freedom of expression,
this time regarding an interview on television. The Court considered the conviction of a
journalist, Mr. Colaço Mestre and of the broadcasting company, Sociedade Independente de
Comunicação (SIC), as a violation of the freedom of expression guaranteed by Article 10 of the
Convention. In 1996, as part of a television programme entitled Os donos da bola (masters of the
ball), SCI broadcast an interview conducted by Mr. Colaço Mestre with Gerhard Aigner, who at
the time was General Secretary of UEFA. The interview, in French, focused on allegations
concerning the bribery of referees in Portugal and the actions of Mr. Pinto da Costa, the then
President of the Portuguese Professional Football League and Chairman of the football club FC
Porto. Mr. Colaço Mestre described Mr. Pinto da Costa as “the referees’ boss” and seemed to be
eliciting comments from his interviewee about the concurrent functions exercised by Mr. Pinto
da Costa at the time. Mr. Pinto da Costa lodged a criminal complaint against Mestre and SIC
accusing them of defamation. The Oporto Criminal Court sentenced Mr. Colaço Mestre to a fine
or an alternative 86-day term of imprisonment, and ordered the journalist and the television
channel to pay the claimant damages of approximately EUR 3,990. In 2002 the Oporto Court of
Appeal dismissed an appeal lodged by Mestre and SIC and upheld their conviction
The European Court of Human Rights, however, is of the opinion that this sanction was a breach
of Article 10 of the Convention. The Court noted that Mr. Pinto da Costa played a major role in
Portuguese public life and that the interview concerned the debate on bribery in football, a
question of public interest. Moreover, the interview had not addressed the private life, but solely
the public activities of Mr. Pinto da Costa as Chairman of a leading football club and President
of the National League. As to the expressions used during the interview, the Court considered
that there had been no breach of journalistic ethics. In the context of the heated debate at the time
about bribery of Portuguese referees, the interview had been broadcast in a Portuguese football
programme intended for an audience with a particular interest in, and knowledge of, the subjectmatter. The Court further considered that the fact that Mr. Colaço Mestre had not been speaking
in his mother tongue when he conducted the interview with the UEFA-Secretary General, which
might have had an impact on the wording of his questions. The Court also found that the
punishment of a journalist by sentencing him to pay a fine, together with an award of damages
against him and the television channel employing him, might seriously hamper the contribution
of the press to the discussion of matters of public interest and should not be envisaged unless
there were particularly strong reasons for doing so. However, that was not the case here. In those
circumstances the Court considered that, whilst the reasons advanced by the Portuguese courts to
justify the applicants’ conviction might be regarded as relevant, they were not sufficient and,
accordingly, did not serve to meet a pressing social need. The Court therefore held that there had
been a violation of Article 10.
•
Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos.
11182/03 and 11319/03, 26 April 2007.
180
IRIS 2007-6/1
181
European Court of Human Rights: Case of Dupuis and Others v. France
Dirk Voorhoof
In a judgment of 7 June 2007, the European Court of Human Rights expressed the unanimous
opinion that the French authorities have violated the freedom of expression of two journalists and
a publisher (Fayard). Both journalists were convicted for using confidential information
published in their book Les Oreilles du President (The Ears of the President). The book focused
on the “Elysée eavesdropping operations”, an illegal system of telephone tapping and recordkeeping, orchestrated by the highest office of the French State and directed against numerous
figures of civil society, including journalists and lawyers. The French Courts found the two
journalists, Dupuis and Pontaut, guilty of the offence of using information obtained through a
breach of the confidentiality of the investigation, or of professional confidentiality. It was also
argued that the publication could be detrimental to the presumption of innocence of Mr. G.M.,
the deputy director of President Mitterrand’s private office at the time of the events, who was
placed under formal investigation for breach of privacy under suspicion of being the responsible
person for the illegal telephone tapping.
The ECHR observed that the subject of the book concerned a debate of considerable public
interest, a state affair, which was of interest to public opinion. The Court also referred to the
status of Mr. G.M. as a public person, clearly involved in political life at the highest level of the
executive wherein the public had a legitimate interest in being informed about the trial, and in
particular, about the facts dealt with or revealed in the book. The Court found it legitimate that
special protection should be granted to the confidentiality of the judicial investigation, in view of
the stakes of criminal proceedings, both for the administration of justice and for the right of
persons under investigation to be presumed innocent. However, at the time the book was
published, the case had already been widely covered in the media and it was already well known
that Mr. G.M. had been placed under investigation in this case. Hence, the protection of the
information on account of its confidentiality did not constitute an overriding requirement. The
Court also questioned whether there was still an interest in keeping information confidential
when it had already been at least partly made public and was likely to be widely known, having
regard to the media coverage of the case. The Court further considered that it was necessary to
take the greatest care in assessing the need to punish journalists for using information obtained
through a breach of the confidentiality of an investigation or of professional confidentiality when
those journalists are contributing to a public debate of such importance, thereby playing their
role as “watchdogs” of democracy. According to the Court, the journalists had acted in
accordance with the standards governing their profession as journalists: the impugned
publication was relevant, not only to the subject matter, but also to the credibility of the
information supplied. Lastly, the Court underlined the fact that the interference with freedom of
expression might have a chilling effect on the exercise of that freedom - an effect that the
relatively moderate nature of the fine, as in the present case, would not sufficiently negate. As
the conviction of the two journalists had constituted a disproportionate interference with their
right to freedom of expression, it was therefore not necessary in a democratic society.
Accordingly, there has been a violation of Article 10 of the Convention.
182
•
Dupuis and Others v. France, no. 1914/02, 7 June 2007.
IRIS 2007-7/1
183
European Court of Human Rights: Case of Hachette Filipacchi Associés (Paris-Match) v.
France
Dirk Voorhoof
Shortly after the Prefect of Corsica, Claude Erignac, was murdered in Ajaccio in February 1998,
an issue of the weekly magazine Paris-Match featured an article entitled “ La République
assassinée ” (The murdered Republic). The article was illustrated by a photograph of the
Prefect’s body lying on the road, facing the camera. The widow and children of Prefect Erignac
sought injunctions against several companies, including the publishing company of Paris-Match
, Hachette Filipacchi Associés. They contended that publication of the photograph of the
bloodied and mutilated body of their relative was not information, which could possibly be
useful to the public, but was prompted purely by commercial considerations and constituted a
particularly intolerable infringement of their right to respect for their privacy. The urgent
applications judge issued an injunction requiring the Hachette Filipacchi company to publish at
its own expense in Paris-Match a statement informing readers that Mrs. Erignac and her children
had found the photograph showing the dead body of Prefect Erignac deeply distressing. A few
days, later the Paris Court of Appeal upheld the injunction, noting, among other considerations,
that publication of the photograph, while Prefect Erignac’s family were still mourning his loss,
and given the fact that they had not given their consent, constituted a gross intrusion in their
grief, and accordingly of the intimacy of their private life. It ruled that such a photograph
infringed human dignity and ordered the Hachette Filipacchi company to publish at its own
expense in Paris-Match a statement informing readers that the photograph had been published
without the consent of the Erignac family, who considered its publication an intrusion in the
intimacy of their private life. On 20 December 2000, the Cour de Cassation (Supreme Court)
dismissed an appeal on points of law by the applicant company.
Relying on Article 10, the publishing house of Paris-Match complained before the European
Court of Human Rights regarding the injunction requiring it to publish, on pain of a coercive
fine, a statement informing readers that the photograph had been published without the consent
of the Erignac family.
The Court considered that the obligation to publish a statement amounted to an interference by
the authorities in the company’s exercise of its freedom of expression. The Court noted that the
practice of requiring publication of a statement was sanctioned by a long tradition of settled
French case-law and was regarded by the French courts as “one of the ways of making good
damage caused through the press”. It considered that this case-law satisfied the conditions of
accessibility and foreseeability required for a finding that this form of interference was
“prescribed by law” within the meaning of Article 10 § 2 of the Convention.
The Court also considered that the interference complained of had pursued a legitimate aim (the
protection of the rights of others) and it noted that the rights concerned fell within the scope of
Article 8 of the Convention, guaranteeing the right to respect for private and family life. The
crucial question that the Court had to answer was whether the interference had been “necessary
184
in a democratic society”, within the framework of duties and responsibilities inherent in the
exercise of freedom of expression. In this respect, the Court reiterated that the death of a close
relative and the ensuing mourning, which were a source of intense grief, must sometimes lead
the authorities to take the necessary measures to ensure respect for the private and family lives of
the persons concerned. In the present case, the offending photograph had been published only a
few days after the murder and after the funeral. The Court considered that the distress of Mr.
Erignac’s close relatives should have led journalists to exercise prudence and caution, given that
he had died in violent circumstances which were traumatic for his family, who had expressly
opposed publication of the photograph. The result of the publication, in a magazine with a very
high circulation, had been to heighten the trauma felt by the victim’s close relatives in the
aftermath of the murder, so that they were justified in arguing that there had been an
infringement of their right to respect for their privacy.
The Court also considered that the wording of the statement Paris-Match had been ordered to
publish, revealed the care the French courts had taken to respect the editorial freedom of ParisMatch . That being so, the Court considered that of all the sanctions which French legislation
permitted, the order to publish the statement was the one which, both in principle and as regards
its content, was the sanction entailing the least restrictions on the exercise of the applicant
company’s rights. It noted that the Hachette Filipacchi company had not shown in what way the
order to publish the statement had actually had a restrictive effect on the way Paris-Match had
exercised and continued to exercise its right to freedom of expression.
The Court concluded that the order requiring Paris-Match to publish a statement, for which the
French courts had given reasons which were both “relevant and sufficient”, had been
proportionate to the legitimate aim it pursued, and therefore “necessary in a democratic society”.
Accordingly, the Court held by five votes to two that there had been no violation of Article 10 of
the European Convention on Human Rights. The two dissenting judges expressed their firm
disagreement with the finding of the majority in two separate dissenting opinions, annexed to the
judgment.
• Hachette Filipacchi Associés v. France, no. 71111/01, 14 June 2007.
IRIS 2007-8/105
185
European Court of Human Rights: Case of Lionarakis v. Greece
Dirk Voorhoof
In 1999 Nikitas Lionarakis, the presenter and coordinator of a radio programme broadcast live by
the Hellenic Broadcasting Corporation ERT, invited the journalist E.V. to debate various aspects
of Greek foreign policy. During the broadcast, E.V. raised the subject of “the Öcalan case”. He
referred to the fact that Öcalan, the ex-leader of the PKK who was prosecuted by the Turkish
authorities for terrorism, had been helped by certain persons in Greece to illegally enter the
country and to escape to Kenya. E.V. referred to F.K., a lawyer who had stood as a candidate in
past legislative and European elections and who had been actively involved in the Öcalan case,
being a contact for Öcalan after he escaped to Kenya. F.K. also had given several interviews in
the press after Öcalan had been arrested by the Turkish authorities. According to the interviewed
journalist, F.K. was, along with several others, to be considered as belonging to a “para-state”,
belonging to a network of “vociferous criminals of the press” and being “neurotic pseudopatriots”. In June 1999 F.K. brought an action for damages alleging insult and defamation by
Lionarakis, ERT and E.V. The domestic courts found against Lionarakis and ordered him to pay
EUR 161,408 for the damage sustained, an amount that was, after a settlement reached with F.K.
in the domestic courts, reduced to EUR 41,067.48.
Lionarakis complained under Article 10 of a violation of his right to freedom of expression,
arguing that he should not be held liable for remarks made by a third party during a radio
programme of a political nature. The Court held unanimously that there had been a violation of
Article 10 of the Convention, particularly when taking into account the fact that the insulting or
defamatory statements were to be considered as value judgments, which had some factual basis.
According to the Court, the domestic courts had failed to make a distinction between allegations
of facts and value judgments. The Court also underlined the fact that these value judgments had
been expressed orally, during a political type programme being broadcast live, while the
programme also had a format that invited the participants to a free exchange of opinions. The
Court considered, in particular, that the journalist and coordinator could not be held liable in the
same way as the person who had made remarks that were possibly controversial, insulting or
defamatory. It reiterated that requiring that journalists distance themselves systematically and
formally from the content of a statement that might defame or harm a third party is not
reconcilable with the press’s role of providing information on current events, opinions and ideas.
Finally, the Court referred to the fact that F.K. was not a “simple private” person, but a
contemporary public figure and that the amount of damages the journalist was compelled to pay
as compensation was rather arbitrary and possibly too high. As the interference in the freedom of
expression of Lionarakis had not sufficiently and pertinently been justified by the Greek
authorities, the Court concluded that the inference was not necessary in a democratic society and
amounted to a violation of Article 10 of the Convention. The Court also found a violation of
Article 6 § 1 in this case (right to a fair hearing), as Lionarakis had been denied the right of
access to the Court of Cassation.
•
Lionarakis v. Greece, no. 1131/05, 5 July 2007.
186
IRIS 2007-9/1
187
European Court of Human Rights: Case of Glas Nadezhda EOOD and Elenkov v. Bulgaria
Dirk Voorhoof
In 2000 Glas Nadezhda EOOD, managed by Mr. Elenkov, applied to the Bulgarian State
Telecommunications Commission (STC) for a licence to set up a radio station to broadcast
Christian programmes in and around Sofia. The STC refused to grant the licence, basing its
refusal on the decision taken by the National Radio and Television Committee (NRTC) which
found that, on the basis of the documents submitted by Glas Nadezhda EOOD, the proposed
radio station would not meet its requirements to make social and business programmes or to
target regional audiences. The proposal also failed to fully meet the requirements to produce
original programmes, to ensure audience satisfaction and to provide the professional and
technological resources required.
Glas Nadezhda EOOD brought proceedings before the Supreme Administrative Court for
judicial review of the decisions of both STC and NRTC, but finally the Court held that the
NRTC had total discretion in assessing whether an application for a broadcasting licence had met
certain criteria and that this discretion was not open to judicial scrutiny. In the meantime, Mr.
Elenkov attempted to obtain a copy of the minutes of the NRTC’s deliberations, which were
meant to be available to the public under the Access to Public Information Act 2000. Despite his
requests and a court order, Mr. Elenkov was not given access to those minutes.
Relying on Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of
expression), the applicants complained that they had been refused a broadcasting licence. They
also complained under Article 13 (right to an effective remedy) about the ensuing judicial review
proceedings.
The Court is of the opinion that the interference in the freedom of expression of the applicants
did not meet the requirements of lawfulness as prescribed by Article 10 § 2. The NRTC had not
held any form of public hearing and its deliberations had been kept secret, despite a court order
obliging it to provide the applicants with a copy of its minutes. Furthermore, the NRTC had
merely stated in its decision that Glas Nadezhda EOOD had not, or had only partially, addressed
a number of its criteria. No reasoning was given to explain why the NRTC came to that
conclusion. In addition, no redress had been given for that lack of reasoning in the ensuing
judicial review proceedings because it had been held that the NRTC’s discretion was not subject
to review. This, together with the NRTC’s vagueness concerning certain criteria for programmes,
had denied the applicants legal protection against arbitrary interference with their freedom of
expression. The Court notes that the guidelines adopted by the Committee of Ministers of the
Council of Europe in the broadcasting regulation domain call for open and transparent
application of the regulations governing the licensing procedure and specifically recommend that
“[a]ll decisions taken ... by the regulatory authorities ... be ... duly reasoned [and] open to review
by the competent jurisdictions” (Recommendation Rec (2000)23 on the independence and
functions of regulatory authorities for the broadcasting sector). Consequently, the Court
188
concludes that the interference with the applicants’ freedom of expression had not been lawful
and held that there had been a violation of Article 10.
Having regard to its findings under Article 10, the Court considers that it is not necessary to
additionally examine whether there has been a violation of Article 9 of the Convention. The
Court on the other hand comes to the conclusion that there has been a violation of Article 13.
The Court observes that the Supreme Administrative Court made it clear that it could not
scrutinise the manner in which that body had assessed the compliance of Glas Nadezhda EOOD's
programme documents with the relevant criteria, as that assessment was within the NRTC's
discretionary powers. The Supreme Administrative Court thus refused to interfere with the
exercise of the NRTC's discretion on substantive grounds and did not examine the issues relevant
to the merits of the applicants' Article 10 grievance. Referring to its case law in similar cases, the
Court concludes that the approach taken by the Supreme Administrative Court - refusing to
interfere with the exercise of the NRTC's discretion on substantive grounds - fell short of the
requirements of Article 13 of the Convention.
•
Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, no. 14134/02, 11 October 2007.
IRIS 2008-1/1
189
European Court of Human Rights: Case of Filatenko v. Russia
Dirk Voorhoof
In the year 2000, the journalist Aleksandr Grigoryevich Filatenko was convicted of defamation.
The reason behind the defamation proceedings was a critical question he formulated during a
broadcast live show he was presenting as a journalist working for Tyva, the regional state
television and radio broadcasting company in the Tyva Republic of the Russian Federation. The
controversial question, based on a question raised by a viewer phoning in, referred to an incident
during which the Tyva Republic flag had been torn off a car, which was campaigning in support
of the Otechestvo Party candidate. It was a matter of disagreement as to how Filatenko had
worded that question during the programme. The opinion of the plaintiff was that Filatenko had
presented the incident as if the Tyva flag had been torn down and stamped on by people from the
Edinstvo Campaign Headquarters. Filatenko denied having made any such allegation: he only
admitted to having specified that the incident had taken place near the Edinstvo Campaign
Headquarters. In the defamation proceedings brought against Filatenko and the broadcasting
company by members of the Edinstvo Movement, the Kyzyl District Court accepted the
plaintiff’s version as to how the question had been worded. As the video recording of the show
had been lost, the district court relied solely on witness testimonies confirming the plaintiff’s
version of Filatenko’s wording of the question. Filatenko was found guilty of defamation and
ordered to pay approximately EUR 347 compensation for damages. Tyva was ordered to
broadcast a rectification in the same time slot as the original show.
In a judgment of 6 December 2007, the European Court of Human Rights was of the opinion that
this conviction and court order violate Article 10 of the European Convention on Human Rights.
The Court reiterated that, as a general rule, any opinions and information aired during an
electoral campaign should be considered part of a debate on questions of public interest and that
there is little scope under Article 10 for restrictions on such debate. Similarly, punishing a
journalist for having worded a question in a certain way, thus seriously hampering the
contribution of the press to a matter of public interest, should not be envisaged unless there is a
particularly strong justification. Therefore, the timing (just before elections) and format of the
show (live and aimed at encouraging lively political debate), required very good reasons for any
kind of restriction on its participants’ freedom of expression. The European Court found that the
Russian courts have failed to make an acceptable assessment of the relevant facts and have not
given sufficient reasons for finding that Filatenko’s wording of the question had been
defamatory. Furthermore, there was no indication that the assumed allegation contained in
Filatenko’s question had represented an attack on anyone’s personal reputation. The Court was
also of the opinion that there could be no serious doubts about Filatenko’s good faith. He had
merely requested a reaction from the show’s participants on an event of major public concern,
without making any affirmations. According to the European Court Filatenko could not be
criticised for having failed to verify facts, given the obvious constraints of a live television show,
while a representative of the Edinstvo political movement had been present and invited to
respond to the question. The Court therefore concluded that the interference with Filatenko’s
190
freedom of expression had not been sufficiently justified, and hence violated Article 10 of the
Convention.
•
Filatenko v. Russia, no. 73219/01, 6 December 2007.
IRIS 2008-3/1
191
European Court of Human Rights: Grand Chamber Judgment in Case of Stoll v.
Switzerland
Dirk Voorhoof
In December 1996 the Swiss ambassador to the United States drew up a “strategic document”,
classified as “confidential”, concerning possible strategies with regard the compensations due to
Holocaust victims for unclaimed assets deposited in Swiss banks. The report was sent to the
Federal Department of Foreign Affairs in Bern and to a limited list of other persons. Martin Stoll,
a journalist working for the Sonntags-Zeitung, also obtained a copy of this document, probably
as a result of a breach of professional confidence by one of the persons who had received a copy
of this strategic paper. Shortly afterwards the Sonntags-Zeitung published two articles by Martin
Stoll, accompanied by extracts from the document. In the following days other newspapers also
published extracts from the report. In 1999, Stoll was sentenced to a fine of CHF 800 (EUR 520)
for publishing “official confidential deliberations” within the meaning of Article 293 of the
Criminal Code. This provision not only punishes the person who is responsible for the breach of
confidence of official secrets, but also those who helped, as an accomplice, to publish such
secrets. The Swiss Press Council, to which the case had also been referred in the meantime,
found that the way in which Stoll had focused on the confidential report, by shortening the
analysis and failing to place the report sufficiently into context, had irresponsibly made some
extracts appear sensational and shocking. In a judgment of 25 April 2006, the Strasbourg Court
of Human Rights held, by four votes to three, that the conviction of Stoll was to be considered as
a breach of the journalist’s freedom of expression as guaranteed by Article 10 of the Human
Rights Convention. For the Court, it was of crucial importance that the information contained in
the report manifestly raised matters of public interest, that the role of the media as critic and
watchdog also applies to matters of foreign and financial policy and that the protection of
confidentiality of diplomatic relations, although a justified principle, could not be protected at
any price. Furthermore, as Stoll had only been convicted because he published parts of the
document in the newspaper, the European Court was of the opinion that the finding by the Swiss
Press Council that he had neglected his professional ethics by focusing on some extracts in a
sensationalist way, should not be taken into account to determine whether or not the publishing
of the document was legitimate.
In a judgment of 10 December 2007, the Grand Chamber of the European Court of Human
Rights has now, with twelve votes to five, overruled this finding of a violation of Article 10.
Although the Grand Chamber recognises that the information contained in the ambassador’s
paper concerned matters of public interest and that the articles from Stoll were published in the
context of an important public, impassioned debate in Switzerland with an international
dimension, it is of the opinion that the disclosure of the ambassador’s report was capable of
undermining the climate of discretion necessary to the successful conduct of diplomatic
relations, and of having negative repercussions on the negotiations being conducted by
Switzerland. The judgment underlines that the fact that Stoll did not himself act illegally by
obtaining the leaked document is not necessarily a determining factor in assessing whether or not
he complied with his duties and responsibilities: as a journalist he could not claim in good faith
192
to be unaware that disclosure of the document in question was punishable under Article 293 of
the Swiss Criminal Code. Finally the Court emphasised that the impugned articles were written
and presented in a sensationalist style, that they suggested inappropriately that the ambassador’s
remarks were anti-Semitic, that they were of a trivial nature and were also inaccurate and likely
to mislead the reader. Similar to the Swiss Press Council, the Court observes a number of
shortcomings in the form of the published articles. The Court comes to the conclusion that the
“truncated and reductive form of the articles in question, which was liable to mislead the reader
as to the ambassador’s personality and abilities, considerably detracted from the importance of
their contribution to the public debate” and that there has been no violation of Article 10 of the
Convention. The five dissenting judges expressed the opinion that the majority decision is a
“dangerous and unjustified departure from the Court’s well-established case-law concerning the
nature and vital importance of freedom of expression in democratic societies”. The judgment of
the Grand Chamber also contrasts remarkably with the principle enshrined in the 19 December
2006 Joint Declaration by the UN, OSCE, OAS and ACHPR according to which “journalists
should not be held liable for publishing classified or confidential information where they have
not themselves committed a wrong in obtaining it” [see IRIS 2007-2: Extra].
•
Stoll v. Switzerland [GC], no. 69698/01, ECHR 2007-V.
IRIS 2008-3/2
193
European Court of Human Rights: Cases of Nur Radyo and Özgür Radyo v. Turkey
Dirk Voorhoof
In two judgments the European Court of Human Rights considered the suspension of
broadcasting licences by the Radio ve Televizyon Üst Kurulu (Turkish Radio and Television
Supreme Council – RTÜK) as a breach of Article 10 of the Convention.
In the case of Nur Radyo Ve Televizyon Yayıncılığı A.Ş. the applicant company complained
about the temporary broadcasting ban imposed on it by the RTÜK. In 1999 RTÜK censured Nur
Radyo for broadcasting certain comments by a representative of the Mihr religious community,
who had described an earthquake in which thousands of people had died in the Izmit region of
Turkey (August 1999) as a “warning from Allah” against the “enemies of Allah”, who had
decided on their “death”. The RTÜK found that such comments breached the rule laid down in
section 4 (c) of Law no. 3984 prohibiting broadcasting that was contrary to the principles
forming part of the general principles laid down in the Constitution, to democratic rules and to
human rights. As the applicant company had already received a warning for breaching the same
rule, the RTÜK decided to suspend its radio broadcasting licence for 180 days. Nur Radyo
challenged this measure in the Turkish courts, but to no avail. Finally it applied before the
European Court of Human Rights, alleging a violation of its right to freedom of expression. Nur
Radyo argued, in particular, that it had put forward a religious explanation for the earthquake,
which all listeners were free to support or oppose. The European Court acknowledged the
seriousness of the offending comments and the particularly tragic context in which they were
made. It also notes that they were of a proselytising nature in that they accorded religious
significance to a natural disaster. However, although the comments might have been shocking
and offensive, they did not in any way incite to violence and were not liable to stir up hatred
against people. The Court reiterated that the nature and severity of the penalty imposed were also
factors to be taken into account when assessing the proportionality of an interference. It therefore
considered that the broadcasting ban imposed on the applicant company had been
disproportionate to the aims pursued, which constitutes a violation of Article 10 of the
Convention.
In the other case, the applicant company was Özgür Radyo-Ses Radyo Televizyon Yayın Yapım
Ve Tanıtım A.Ş. The case concerned the 365-day suspension of the company’s operating licence
on account of a song that it had broadcast. The RTÜK took the view that the words of the
offending song infringed the principle set forth in section 4(g) of Law no. 3984, prohibiting the
broadcasting of material likely to incite the population to violence, terrorism or ethnic
discrimination, and of a nature to arouse feelings of hatred. After exhausting all national
remedies, Özgür Radyo-Ses Radyo Televizyon lodged a complaint in Strasbourg under Article
10 of the Convention that the Turkish authorities had interfered with its right to freedom of
expression in a manner that could not be regarded as necessary in a democratic society. In its
judgment, the European Court considered that the song reflected a political content and criticised
the military. The song however referred to events that took place more than 30 years ago. Over
and above, the lyrics of the song were very well known in Turkey and the song had been
194
distributed over many years, with the authorisation of the Ministry of Culture. According to the
Court the song did present a risk of inciting to hatred or hostility amongst the population. There
was no pressing social need for the interference and the sanction suspending the broadcaster’s
licence for such a long period was not proportionate to the legitimate aim of the protection of
public order. The Court found that there had been a violation of Article 10 of the Convention.
•
•
Nur Radyo Ve Televizyon Yayıncılığı A.Ş. v. Turkey, no. 6587/03, 27 November 2007.
Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş. v. Turkey (no. 2), no.
11369/03, 4 December 2007.
IRIS 2008-3/3
195
European Court of Human Rights: Cases of Voskuil v. the Netherlands and Tillack v.
Belgium
Dirk Voorhoof
In two recent judgments, the European Court of Human Rights has given substantial protection
to journalists’ right of non-disclosure of their sources under Article 10 of the Convention. The
case of Voskuil v. the Netherlands concerns Mr Voskuil’s allegations that he was denied the
right not to disclose his source for two articles he had written for the newspaper Sp!ts and that he
was detained for more than two weeks in an attempt to compel him to do so. Voskuil had been
summoned to appear as a witness for the defence in the appeal proceedings concerning three
individuals accused of arms trafficking. The court ordered the journalist to reveal the identity of
a source, in the interests of those accused and the integrity of the police and judicial authorities.
Voskuil invoked his right to remain silent ( zwijgrecht ) and, subsequently, the court ordered his
immediate detention. Only two weeks later, the Court of Appeal decided to lift the order for the
applicant’s detention. It considered that the report published by the applicant was implausible
and that the statement of Voskuil was no longer of any interest in the proceedings concerning the
arms trafficking. In Strasbourg, Voskuil complained of a violation of his right to freedom of
expression and press freedom, under Article 10 of the Convention. The European Court recalled
that the protection of a journalist’s sources is one of the basic conditions for freedom of the
press, as reflected in various international instruments, including the Council of Europe’s
Committee of Ministers Recommendation No. R (2000) 7. Without such protection, sources
might be deterred from assisting the press in informing the public on matters of public interest
and, as a result, the vital public-watchdog role of the press might be undermined. The order to
disclose a source can only be justified by an overriding requirement in the public interest. In
essence, the Court was struck by the lengths to which the Netherlands authorities had been
prepared to go to learn the source’s identity. Such far-reaching measures cannot but discourage
those who have true and accurate information relating to an instance of wrongdoing from coming
forward in the future and sharing their knowledge with the press. The Court found that the
Government’s interest in knowing the identity of the journalist’s source had not been sufficient
to override the journalist’s interest in concealing it. There had, therefore, been a violation of
Article 10.
The other case concerns the journalist H.M. Tillack, who complained of a violation, by the
Belgian authorities, of his right to protection of sources. Tillack, a journalist working in Brussels
for the weekly magazine Stern, was suspected of having bribed a civil servant, by paying him
EUR 8,000, in exchange for confidential information concerning investigations in progress in the
European institutions. The European Anti-Fraud Office OLAF opened an investigation in order
to identify Tillack’s informant. After the investigation by OLAF failed to unmask the official at
the source of the leaks, the Belgian judicial authorities where requested to open an investigation
into an alleged breach of professional confidence and bribery involving a civil servant. On 19
March 2004, Tillack’s home and workplace were searched and almost all his working papers and
tools were seized and placed under seal (16 crates of papers, two boxes of files, two computers,
four mobile phones and a metal cabinet). Tillack lodged an application with the European Court
196
of Human Rights, after the Belgian Supreme Court rejected his complaint under Article 10 of the
Convention. The European Court emphasised that a journalist’s right not to reveal her or his
sources could not be considered a mere privilege, to be granted or taken away depending on the
lawfulness or unlawfulness of their sources, but was part and parcel of the right to information
and should be treated with the utmost caution ( even more so in the applicant’s case, since he had
been under suspicion because of vague, uncorroborated rumours, as subsequently confirmed by
the fact that no charges were placed. The Court also took into account the amount of property
seized and considered that although the reasons given by the Belgian courts were “relevant”,
they could not be considered “sufficient” to justify the impugned searches. The European Court
accordingly found that there had been a violation of Article 10 of the Convention.
•
•
Voskuil v. the Netherlands, no. 64752/01, November 2007.
Tillack v. Belgium, no. 20477/05, 27 November 2007.
IRIS 2008-4/2
197
European Court of Human Rights: case of Guja v. Moldova
Dirk Voorhoof
The European Court of Human Rights recently delivered a judgement on a very particular and
interesting case, concerning the position of a “whistle-blower” who leaked two letters to the
press and was subsequently dismissed. The Court held that the divulgence of the internal
documents to the press was in casu protected by Article 10 of the Convention, which guarantees
the right to freedom of expression, including the right to receive and impart information and
ideas. The applicant, Mr. Guja, was Head of the Press Department of the Moldovan Prosecutor
General’s Office, before he was dismissed, on the grounds that he had handed over two secret
letters to a newspaper and that, before doing so, he had failed to consult the heads of other
departments of the Prosecutor General’s Office, a behaviour which constituted a breach of the
press department’s internal regulations. Guja was of the opinion that the letters were not
confidential and that, as they revealed that the Deputy Speaker of Parliament, Vadim Mişin, had
exercised undue pressure on the Public Prosecutor’s Office, he had acted in line with the
President’s anti-corruption drive and with the intention of creating a positive image of the Office.
Guja brought a civil action against the Prosecutor General’s Office seeking reinstatement, but
this action was not successful. Relying on Article 10 of the Convention, he complained to the
European Court of Human Rights about his dismissal.
The European Court held that, given the particular circumstances of the case, external reporting,
even to a newspaper, could be justified, as the case concerned the pressure exerted by a highranking politician on pending criminal cases. At the same time, the Public Prosecutor had given
the impression that he had succumbed to political pressure. The Court also referred to the reports
of international non-governmental organisations (the International Commission of Jurists,
Freedom House, and the Open Justice Initiative), which had expressed concern about the
breakdown of the separation of powers and the lack of judicial independence in Moldova. There
is no doubt that these are very important matters in a democratic society, about which the public
has a legitimate interest in being informed and which fall within the scope of political debate.
The Court considered that the public interest in the provision of information on undue pressure
and wrongdoing within the Prosecutor's Office is so important in a democratic society, that it
outweighs the interest in maintaining public confidence in the Prosecutor General's Office. The
open discussion of topics of public concern is essential to democracy and it is of great
importance if members of the public are discouraged from voicing their opinions on such
matters. The Court, being of the opinion that Guja had acted in good faith, finally noted that it
was the heaviest sanction possible (dismissal) that had been imposed on the applicant. The
sanction not only had negative repercussions on the applicant's career, but could also have a
serious chilling effect on other employees from the Prosecutor's Office and discourage them
from reporting any misconduct. Moreover, in view of the media coverage of the applicant's case,
the sanction could also have a chilling effect on other civil servants and employees.
Being mindful of the importance of the right to freedom of expression on matters of general
interest, of the right of civil servants and other employees to report illegal conduct and
198
wrongdoing at their place of work, the duties and responsibilities of employees towards their
employers and the right of employers to manage their staff, and having weighed up the other
different interests involved in the applicant’s case, the Court came to the conclusion that the
interference with the applicant's right to freedom of expression, in particular his right to impart
information, was not “necessary in a democratic society”. Accordingly, there has been a
•
Guja v. Moldova [GC], no. 14277/04, ECHR 2008.
IRIS 2008-6/1
199
European Court of Human Rights: Case of Yalçin Küçük (nr. 3) v. Turkey
Dirk Voorhoof
On 22 April 2008, the European Court of Human Rights found a breach of freedom of
expression in the case of Yalçin Küçük (nr. 3) v. Turkey. Küçük, a university professor and a
writer, who was prosecuted on account of various speeches he gave and articles he wrote
concerning the Kurdish question. In 1999, the Ankara State Security Court found him guilty of
inciting hatred and hostility, of emitting separatist propaganda and of belonging to an armed
group (art. 312 § 2 and art. 168 § 2 of the Criminal Code and art. 8 of the Antiterrorism Act nr.
3713). He was also convicted of assisting an armed group (art. 169 Criminal Code) on the basis
of an interview for Med-TV in which Küçük had welcomed the PKK-leader Abdullah Öcalan as
“Mister President” and had invited him to make a statement about the Kurdish question.
Küçük had to undergo a prison sentence of six years and six months and was ordered to pay a
fine of EUR 1,300. Relying on Article 6 § 1 and Article 10 of the European Convention on
Human Rights, he complained that the proceedings had been unfair and that his right to freedom
of expression had been breached.
The European Court in its judgment of 22 April 2008 considered that the grounds adopted by the
Turkish courts could not be regarded in themselves as sufficient to justify interference with
Külçük’s right to freedom of expression. While certain comments in the offending articles and
speeches sought to justify separatism, which thus made them hostile in tone, taken as a whole
they did not, however, advocate the use of violence, armed resistance or an uprising and did not
constitute hate speech, which, in the Court’s view, was the essential factor to be taken into
consideration. One speech by Külçük, however, contained a sentence considered as incitement to
violence and therefore could not invoke the protection guaranteed by Article 10 of the
Convention.
The European Court, referring to the nature and the severity of the sanctions, found that
Külçük’s conviction as a whole had been disproportionate to the aims pursued and, accordingly,
was not “necessary in a democratic society”. The Court in particular referred to the severity of
the sentence of imprisonment for six years and six months. The Court held, unanimously, that
there had been a violation of Article 10 and that it did not need to examine the complaints
submitted under Article 6 of the Convention. It awarded Küçük EUR 3,000 in respect of nonpecuniary damage.
•
Yalçın Küçük v. Turkey (no. 3), no. 71353/01, 22 April 2008.
IRIS 2008-7/1
200
European Court of Human Rights: Case of Meltex Ltd. and Mesrop Movsesyan v. Armenia
Dirk Voorhoof
In a judgment of 17 June 2008 the European Court of Human Rights held unanimously that the
refusal by the Armenian authorities, on several occasions, to grant the Meltex television
company requests for broadcasting licences amounted to a violation of Article 10 of the
European Convention on Human Rights. The Court firstly recognized that the independent
broadcasting company Meltex was to be considered as a “victim” of an interference with its
freedom of expression by the Armenian public authorities: by not recognising the applicant
company as the winner in the calls for tenders it competed in, the NTRC (National Radio and
Television Commission) effectively refused the applicant company's bids for a broadcasting
licence and such refusals do indeed constitute interferences with the applicant company's
freedom to impart information and ideas. The Court also made clear that States, however, are
permitted to regulate by means of a licensing system the way in which broadcasting is organised
in their territories, particularly in its technical aspects, and that the grant of a licence may also be
made conditional on matters such as the nature and objectives of a proposed station, its potential
audience at national, regional or local level, the rights and needs of a specific audience and the
obligations deriving from international legal instruments. The compatibility of such interferences
must be assessed in light of the requirements of paragraph 2 of Article 10 of the Convention,
which means inter alia that the interference must be prescribed by law in a way that guarantees
protection against arbitrary interferences by public authorities. Indeed, the manner in which the
licensing criteria are applied in the licensing process must provide sufficient guarantees against
arbitrariness, including the proper reasoning by the licensing authority of its decisions denying a
broadcasting licence (see IRIS 2008-1: 3, ECtHR 11 October 2007, Glas Nadezhda EOOD and
Elenkov v. Bulgaria).
The Court noted that the NTRC’s decisions had been based on the Broadcasting Act (2000) and
other complementary legal acts defining precise criteria for the NTRC to make its choice, such as
the applicant company’s finances and technical resources, its staff’s experience and whether it
produced predominately in-house Armenian programmes. However, the Broadcasting Act had
not explicitly required at that time that the licensing body give reasons when applying those
criteria. Therefore, the NTRC had simply announced the winning company without providing
any explanation as to why that company, and not Meltex, had met the requisite criteria. There
was no way of knowing on what basis the NTRC had exercised its discretion to refuse a licence.
On this point, the Court noted that the guidelines adopted by the Committee of Ministers of the
Council of Europe in the broadcasting regulation domain call for open and transparent
application of the regulations governing the licensing procedure and specifically recommend that
“all decisions taken ... by the regulatory authorities ... be ... duly reasoned” (Rec. (2000)23 - See
also Declaration of the Committee of Ministers of 26 March 2008 on the independence and
functions of regulatory authorities for the broadcasting sector). The Court further took note of the
relevant conclusions reached by the PACE in its Resolution of 27 January 2004 concerning
Armenia, where it stated that “the vagueness of the law in force had resulted in the NTRC being
given outright discretionary powers”. The Court considered that a licensing procedure whereby
201
the licensing authority gives no reasons for its decisions does not provide adequate protection
against arbitrary interferences by a public authority with the fundamental right to freedom of
expression. The Court therefore concluded that the interference with Meltex’s freedom to impart
information and ideas, namely the seven denials of a broadcasting licence, had not met the
requirement of lawfulness under the European Convention and hence violated Article 10 of the
Convention.
•
Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, 17 June 2008.
IRIS 2008-8/1
202
European Court of Human Rights: case of Flux nr. 6 v. Moldova on Journalistic Ethics
Dirk Voorhoof
After several successful complaints before the Strasbourg Court of Human Rights related to the
freedom of critical journalistic reporting, this time the European Court, by four votes to three,
came to the conclusion that the conviction of the Moldovan newspaper Flux was not to be
considered a violation of Article 10 of the Convention. The approach taken by the majority of the
Court regarding the (lack of) journalistic ethical quality of the litigious articles published by Flux
is strikingly different to that of the dissenting judges.
In 2003 Flux published an article about a High School in Chisinau, sharply criticising its
principal. The article merely quoted an anonymous letter Flux had received from a group of
students' parents. The letter alleged inter alia that the school's principal used the school's funds
for inappropriate purposes and that he had received bribes of up to USD 500 for enrolling
children in the school. Flux refused a short time later to publish a reply from the school’s
principal. The text of the reply was then published in another newspaper, the Jurnal de Chisinău .
The reply stated that Flux had published an anonymous letter without even visiting the school or
conducting any form of investigation, which showed that its aim was purely sensationalism . It
was said that Flux had acted contrary to journalistic ethics. Flux reacted to this reply by
publishing a new article, repeating some of the criticism published in the first article and arguing
that Fluxwould certainly find persons willing to testify in front of a court about the bribes. The
principal then brought civil proceedings for defamation against Flux and the district court found
the allegations of bribery to be untrue and defamatory. The court stated that it had no reason to
believe the three witnesses who had testified in court that bribes were taken for the enrolment of
children in the school. The district court expressed the opinion that “to be able to declare
publicly that someone is accepting bribes, there is a need for a criminal-court decision finding
that person guilty of bribery”. Since there was no such finding against the principal, he should
not have been accused of bribery, according to the Moldovan district court. The judgment of the
district court was confirmed by the Court of Appeal of Chisinau and the appeal with the Supreme
Court of Justice was dismissed. The newspaper was ordered to issue an apology and to pay the
principal MDL 1,350, the equivalent of EUR 88 at the time.
Flux complained to Strasbourg under Article 10 of the Convention that the Moldovan courts'
decisions constituted an interference with its right to freedom of expression that could not be
regarded as necessary in a democratic society. The European Court, in its judgment of 29 July
2008, attached major importance to the fact that, despite the seriousness of the accusations of
bribery, the journalist ofFlux who wrote the article made no attempt to contact the principal to
ask his opinion on the matter nor conducted any form of investigation into the matters mentioned
in the anonymous letter. Furthermore, a right of reply was refused by Flux to the principal,
although the language used in this reply was not offensive. Flux’s reaction to the reply published
in Jurnal de Chisinău was regarded by the Court as a form of reprisal for questioning the
newspaper's professionalism. The Court underlined however that it does not accept the reasoning
of the district court, namely that the allegations of serious misconduct levelled against the
203
principal of the school should have first been proved in criminal proceedings. But the Court also
made clear that the right to freedom of expression cannot be taken to confer on newspapers an
absolute right to act in an irresponsible manner by charging individuals with criminal acts in the
absence of a basis in fact at the material time and without offering them the possibility to counter
the accusations. As there are limits to the right to impart information to the public, a balance
must be struck between that right and the rights of those injured, including the right to be
presumed innocent of any criminal offence until proven guilty. The Court also referred to the
unprofessional behaviour of the newspaper and the relatively modest award of damages which it
was required to pay in the context of a civil action and finds that the solution of the domestic
courts struck a fair balance between the competing interests involved. The Court came to the
conclusion that the newspaper acted in flagrant disregard of the duties of responsible journalism
and thus undermined the Convention rights of others, while the interference with the exercise of
its right to freedom of expression was justified. On these grounds, the Court held by four votes to
three that there has been no violation of Article 10 of the Convention.
The three dissenting judges in their joint opinion made clear however that they voted without
hesitation in favour of a finding of a violation of Article 10. They argued that in this case the
Court attached more value to professional behaviour on behalf of journalists than to the unveiling
of corruption. According to the dissenters, the facts show that the newspaper made enquiries
about persistent rumours, found three witnesses whose integrity has not been questioned and who
supported the allegations of corruption on oath. The dissenters underlined that the Court has
penalised the newspaper not for publishing untruths, but for so-called “unprofessional
behaviour”. The dissenting opinions expressed the fear that this judgment of the Court has
thrown the protection of freedom of expression as far back as it possibly could, stating that
“Even if alarming facts are sufficiently borne out by evidence, in the balancing exercise to
establish proportionality, disregard for professional norms is deemed by Strasbourg to be more
serious than the suppression of democratic debate on public corruption. To put it differently, in
the Court's view the social need to fight poor journalism is more pressing than that of fighting
rich corruption. The 'chilling effect' of sanctions against press freedom dreaded by the Court's
old case-law has materialised through the Court's new one. (..) The serious inference of this
judgment is that freedom of expression also ceases to exist when it is punished for pushing
forward for public debate allegations of public criminality made by witnesses certified as
credible but in a manner considered unprofessional. When subservience to professional good
practice becomes more overriding than the search for truth itself it is a sad day for freedom of
expression”.
•
Flux v. Moldova (no. 6), no. 22824/04, 29 July 2008.
IRIS 2008-9/1
204
European Court of Human Rights: Case of Petrina v. Romania
Dirk Voorhoof
In 1997, during a television programme that focused on the problems with access to
administrative documents stored in the archives of the former Romanian State security services,
C.I., a journalist with the satirical weekly ‘Caţavencu’, alleged that a politician, Liviu Petrina,
had been active in the secret police Securitate. A few weeks later, the same journalist published
an article reiterating his allegations. Similar allegations of collaboration by Petrina with the
Securitate under the regime of Ceauşescu were also published by another journalist, M.D. Petrina
lodged two sets of criminal proceedings against the journalists, C.I. and M.D., for insult and
defamation, but both journalists were acquitted. The Romanian Courts referred to the European
Court’s case law regarding Article 10 of the Convention, guaranteeing the right of journalists to
report on matters of public interest and to criticise politicians, esp. as the allegations expressed
by the journalists had been general and indeterminate. A few years later, however, a certificate
was issued by the national research council for the archives of the State Security Department
Securitate, stating that Petrina was not among the people listed as having collaborated with the
Securitate.
Following the acquittal of the two journalists by the Romanian Courts, Petrina complained in
Strasbourg that his right to respect for his honour and his good name and reputation had been
violated, relying on Article 8 of the Convention (right to respect for private and family life). The
Court accepted that the acquittal of the journalists could raise an issue under the positive
obligations of the Romanian authorities to help with ensuring respect of Petrina’s privacy,
including his good name and reputation.
The European Court recognised that the discussion on the collaboration of politicians with the
Securitate was a highly sensitive social and moral issue in the Romanian historical context.
However, the Court found that, in spite of the satirical character of Caţavencu and in spite of the
mediatisation of the debate, the articles in question were intended to offend Petrina, as there was
no evidence at all that Petrina had ever belonged to the Securitate. It also found that the
allegations were very concrete and direct, not “general and undetermined”, and were devoid of
irony or humour. The Court did not believe that C.I. and M.D. could invoke, in this case, the
right of journalists to exaggerate or provoke, as there was no factual basis at all for the
allegations. The journalists’ allegations overstepped the bounds of acceptability , accusing
Petrina of having belonged to a group that used repression and terror to serve the regime of
Nikolai Ceauşescu.
Accordingly, the European Court was not convinced that the reasons given by the domestic
courts for protecting the journalists’ freedom of expression (Article 10) were sufficient to take
precedence over Petrina’s reputation, as protected under Article 8 of the Convention. The Court
found unanimously that there had been a violation of Article 8 of the Convention. Petrina was
awarded 5,000 EUR in non-pecuniary, moral damages.
205
•
Petrina v. Romania, no. 78060/01, 14 October 2008.
IRIS 2009-1/1
206
European Court of Human Rights: case of Leroy v. France
Dirk Voorhoof
In 2002, the French cartoonist Denis Leroy (pseudonym Guezmer) was convicted for complicity
in condoning terrorism because of a cartoon published in a Basque weekly newspaper Ekaitza.
On 11 September 2001, the cartoonist submitted to the magazine’s editorial team a drawing
representing the attack on the twin towers of the World Trade Centre, with a caption which
parodied the advertising slogan of a famous brand: “We have all dreamt of it... Hamas did it”
(Cfr. “Sony did it”). The drawing was published in the magazine on 13 September 2001. In its
next issue, the magazine published extracts from letters and emails received in reaction to the
drawing. It also published a reaction of the cartoonist himself, in which he explained that when
he made the cartoon he was not taking into account the human suffering (“la douleur humaine”)
caused by the attacks on WTC. He emphasized that his aim was to illustrate the decline of the
US-symbols and he also underlined that cartoonists illustrating actual events do not have much
time for distanced reflection: “Quant un dessinateur réagit sur l’actualité, il n’a pas toujours le
bénéfice du recul”. He also explained that his real intention was governed by political and
activist expression, namely that of communicating his anti-Americanism through a satirical
image and illustrating the decline of American imperialism.
The public prosecutor, on request of the regional governor, brought proceedings against the
cartoonist and the newspaper’s publishing director in application of Article 24, section 6 of the
French Press Act of 1881, which penalizes, apart from incitement to terrorism, also condoning
(glorifying) terrorism: “l’apologie du terrorisme”. The publishing director was convicted for
condoning terrorism, while Mr. Leroy was convicted for complicity in condoning terrorism. Both
were ordered to pay a fine of EUR 1,500 each, to publish the judgment at their own expense in
Ekaitza and in two other newspapers and to pay the costs of the proceedings. The Pau Court of
Appeal held that “by making a direct allusion to the massive attacks on Manhattan, by attributing
these attacks to a well-known terrorist organisation and by idealising this lethal project through
the use of the verb ‘to dream’, [thus] unequivocally praising an act of death, the cartoonist
justifies the use of terrorism, identifies himself through his use of the first person plural (“We”)
with this method of destruction, which is presented as the culmination of a dream and, finally,
indirectly encourages the potential reader to evaluate positively the successful commission of a
criminal act.”
The cartoonist lodged an application with the European Court of Human Rights, relying on
Article 10 of the Convention guaranteeing freedom of expression. Mr. Leroy complained that the
French courts had denied his real intention, which was governed by political and activist
expression, namely that of communicating his anti-Americanism through a satirical image. Such
an expression of an opinion, he argued, should be protected under Article 10 of the Convention.
The Court considered that Mr. Leroy’s conviction amounted indeed to an interference with the
exercise of his right to freedom of expression. It refused to apply Article 17 of the Convention
(prohibition of abuse of rights) in this case, although the French government invoked this article
arguing that the cartoon, by glorifying terrorism, should be considered as an act aimed at the
207
destruction of the rights and freedoms guaranteed by the European Convention for the protection
of Human Rights and that, therefore, the cartoonist could not rely at all on the freedom of
expression guaranteed by the Convention. The Court underlined that the message of the cartoon the destruction of US imperialism - did not amount to a denial of the fundamental values of the
Convention, in contrast e.g. with incitement to racism, anti-Semitism, Holocaust negationism and
Islamophobia. Hence, in principle the cartoon was entitled to Article 10 protection. As the
conviction of Mr. Leroy was prescribed by French law and pursued several legitimate aims,
having regard to the sensitive nature of the fight against terrorism, namely the maintenance of
public safely and the prevention of disorder and crime, it especially remained to be determined
whether the interference by the French authorities was “necessary in a democratic society”,
according to Article 10 § 2 of the Convention.
The Court noted at the outset that the tragic events of 11 September 2001, which were at the
origin of the impugned expression, had given rise to global chaos, and that the issues raised on
that occasion were subject to discussion as a matter of public interest. The Court however
considered that the drawing was not limited to criticism of American imperialism, but supported
and glorified the latter’s violent destruction. It based its finding on the caption which
accompanied the drawing and noted that the applicant had expressed his moral support for those
whom he presumed to be the perpetrators of the attacks of 11 September 2001. Through his
choice of language, the applicant commented approvingly on the violence perpetrated against
thousands of civilians and diminished the dignity of the victims, as he submitted his drawing on
the day of the attacks and it was published on 13 September, with no precautions on his part as to
the language used. In the Court’s opinion, this factor - the date of publication - was such as to
increase the cartoonist’s responsibility in his account of, and even support for, a tragic event,
whether considered from an artistic or a journalistic perspective. Also the impact of such a
message in a politically sensitive region, namely the Basque Country, was not to be overlooked.
According to the Court, the cartoon had provoked a certain public reaction, capable of stirring up
violence and demonstrating a plausible impact on public order in the region. All in all, the Court
considered that the grounds put forward by the domestic courts in convicting Mr. Leroy had been
“relevant and sufficient”. Having regard to the modest nature of the fine and the context in which
the impugned drawing had been published, the Court found that the measure imposed on the
cartoonist was not disproportionate to the legitimate aim pursued. Accordingly, there has not
•
Leroy v. France, no. 36109/03, 2 October 2008.
IRIS 2009-2/1
208
European Court of Human Rights: Case of TV Vest SA and Rogaland Pensjonistparti v
Norway
Dirk Voorhoof
On 11 December 2008, the European Court of Human Rights delivered a judgment regarding a
ban on political advertising on television. The crucial question the Court had to decide was
whether a blanket ban on political advertisements on TV, as it was applied in Norway, was to be
considered “necessary in a democratic society'” within the meaning of Article 10 of the European
Convention on Human Rights. In principle, there is little scope under Article 10 of the
Convention for restrictions on political speech or on debate on questions of public interest.
However, a ban on paid political advertisements on TV exists in many countries in Europe, such
as the UK, Sweden, Denmark, France, Belgium and Norway. According to Art. 3, 1 (3) of the
Norwegian Broadcasting Act 1992, broadcasters “cannot transmit advertisements for life
philosophy or political opinions through television”. The Court has now decided unanimously
that an application of this ban was in breach of Article 10 of the Convention.
The case goes back to the application by TV Vest AS Ltd., a television company in Stavanger,
on the west coast of Norway, and the regional branch of a Norwegian political party, Rogaland
Pensjonistparti (the Rogaland Pensioners Party). A fine was imposed on TV Vest for
broadcasting adverts for the Pensioners Party, in breach of the Broadcasting Act. This fine had
been imposed by the Statens medieforvaltning (State Media Administration) and had been
confirmed by the Høyesterett (Supreme Court), which found, inter alia , that allowing political
parties and interest groups to advertise on television would give richer parties and groups more
scope for marketing their opinions than their poorer counterparts. The Supreme Court also
maintained that the Pensioners Party had many other means available to put across its message to
the public. The Pensioners Party had argued that it was a small political party, representing only
1.3 % of the electorate, without powerful financial means or support from strong financial
groups, that it seldom got any focus in editorial television broadcasting and, thus, had a real need
to establish direct communication between itself and the electorate. The Party was never
identified either in national or local opinion polls.
The European Court said that to accept that the lack of consensus in Europe regarding the
necessity to ban political advertisements on TV spoke in favour of granting States greater
discretion than would normally be allowed in decisions with regard to restrictions on political
debate. The Court however came to the conclusion that the arguments in support of the
prohibition in Norway, such as the safeguarding of the quality of political debate, guaranteeing
pluralism, maintaining the independence of broadcasters from political parties and preventing
powerful financial groups from taking advantage through commercial political advertisements on
TV were relevant, but not sufficient, reasons to justify the total prohibition of this form of
political advertising. The Court especially noted that the Pensioners Party did not come within
the category of parties or groups that had been the primary targets of the prohibition. In contrast
to the major political parties, which were given a large amount of attention in the edited
television coverage, the Pensioners Party was hardly ever mentioned on Norwegian television.
209
Therefore, paid advertising on television had become the only way for the Party to get its
message across to the public through that type of medium.
The Court was not persuaded that the ban had the desired effect and it explicitly rejected the
view expounded by the Norwegian Government that there was no viable alternative to a blanket
ban. In the Court's view, there was no reasonable relationship of proportionality between the
legitimate aim pursued by the prohibition on political advertising and the means employed to
achieve that aim. The restriction that the prohibition and the imposition of the fine entailed on
the applicants' exercise of their freedom of expression could not therefore be regarded as having
been necessary in a democratic society. Accordingly, there had been a violation of Article 10 of
the Convention.
•
TV Vest AS and Rogaland Pensjonistparti v. Norway, no. 21132/05, ECHR 2008 (extracts).
IRIS 2009-3/1
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European Court of Human Rights: Case of Khurshid Mustafa and Tarzibachi v. Sweden
Dirk Voorhoof
The applicants, Adnan Khurshid Mustafa and his wife, Weldan Tarzibachi, are Swedish
nationals of Iraqi origin. Relying on Article 10 (freedom to receive information) and Article 8
(right to respect for private and family life), they complained that they and their three children
had been forced to move from their rented flat in Rinkeby (a suburb of Stockholm) in June 2006.
The reason for their eviction was their refusal to remove a satellite dish in their flat after the
landlord had initiated proceedings against them, because he considered the installation of a
satellite antenna as a breach of the tenancy agreement that stipulated that “outdoor antennae”
were not allowed to be set up on the house. The proceedings continued even after Mr. Khursid
Mustafa and Mrs. Tarzibachi had dismantled the outdoor antenna and replaced it with an antenna
installation in the kitchen on an iron stand from which an arm, on which the satellite dish was
mounted, extended through a small open window. Eventually, the Swedish Court of Appeal
found that the tenants had disregarded the tenancy agreement and that they should dismantle the
antenna, if the tenancy agreement were not cancelled. The Swedish Court was of the opinion that
the tenants were fully aware of the importance the landlord attached to the prohibition of the
installation of satellite antennae and that, although the installation in the kitchen did not pose a
real safety threat, their interests in keeping the antenna installation, based on their right to receive
television programmes of their choice, could not be permitted to override the weighty and
reasonable interest of the landlord that order and good custom be upheld.
The fact that the case involved a dispute between two private parties was not seen as sufficient
reason for the European Court to declare the application inadmissible. Indeed, the Court found
that the applicants’ eviction was the result of a domestic court’s ruling, making the Swedish State
responsible, within the meaning of Article 1 of the Convention, for any resultant breach of
Article 10 of the Convention. The European Court observed that the satellite dish enabled the
applicants to receive television programmes in Arabic and Farsi from their country of origin
(Iraq). That information included political and social news and was of particular interest to them
as an immigrant family who wished to maintain contact with the culture and language of their
country of origin. At the time, there were no other means for the applicants to gain access to such
programmes and the dish could not be placed anywhere else. Nor could news obtained from
foreign newspapers and radio programmes in any way be equated with information available via
television broadcasts. It was not shown that the landlord had installed broadband or internet
access or other alternative means which might have given the tenants in the building the
possibility of receiving these television programmes. Furthermore, the landlord’s concerns about
safety had been examined by the domestic courts, who had found that the installation had been
safe. And there were certainly no aesthetic reasons to justify the removal of the antenna, as the
flat was located in one of Stockholm’s suburbs, in a tenement house with no particular aesthetic
aspirations. Moreover, the applicants’ eviction, with their three children, from their home, a flat
in which they had lived for more than six years, was disproportionate to the aim pursued, namely
the landlord’s interest in upholding order and good custom. The Court therefore concluded that
the interference with the applicants’ right to freedom of information had not been “necessary in a
211
democratic society”: Sweden had failed in its positive obligation to protect the right of the
applicants to receive information. The European Court held unanimously that there had been a
violation of Article 10, while it further held unanimously that there was no need to examine the
complaint under Article 8. The applicants were awarded EUR 6,500 in respect of pecuniary
damage, EUR 5,000 in respect of non-pecuniary damage and EUR 10,000 for costs and
expenses.
•
Khurshid Mustafa and Tarzibachi v. Sweden, no. 23883/06, 16 December 2008.
IRIS 2009-4/1
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European Court of Human Rights: Case of Times Newspapers Ltd. (nos. 1 and 2) v. UK
Dirk Voorhoof
The European Court of Human Rights has held unanimously that there had been no violation of
Article 10 of the European Convention on Human Rights in the case of Times Newspapers v. the
UK, because the British courts’ finding that the Times Newspapers Ltd had libelled G.L. by the
continued publication on its Internet site of two articles did not represent a disproportionate
restriction on the newspaper’s freedom of expression.
The applicant in this case, Times Newspapers Ltd, is the owner and publisher of The Times
newspaper, registered in England. It published two articles, in September and October 1999
respectively, reporting on a massive money-laundering scheme carried out by an alleged Russian
mafia boss, G.L., whose name was set out in full in the original article. Both articles were
uploaded onto The Times website on the same day as they were published in the paper version of
the newspaper. In December 1999, G.L. brought proceedings for libel against the Times
Newspapers Ltd, its editor and the two journalists who signed the two articles printed in the
newspaper. The defendants did not dispute that the articles were potentially defamatory, but
contended that the allegations were of such a kind and seriousness that they had a duty to publish
the information and the public had a corresponding right to know. While the first libel action was
underway, the articles remained on The Times website, where they were accessible to Internet
users as part of the newspaper’s archive of past issues. In December 2000, G.L. brought a second
action for libel in relation to the continuing Internet publication of the articles. Following this,
the defendants added a notice to both articles in the Internet archive announcing that they were
subject to libel litigation and were not to be reproduced or relied on without reference to the
Times Newspapers Legal Department.
Times Newspapers subsequently argued that only the first publication of an article posted on the
Internet should give rise to a cause of action in defamation and not any subsequent downloads by
Internet readers. Accordingly, Times Newspapers submitted, the second action had been
commenced after the limitation period for bringing libel proceedings had expired. The British
courts disagreed, holding that, in the context of the Internet, the common law rule according to
which each publication of a defamatory statement gives rise to a separate cause of action meant
that a new cause of action accrued every time the defamatory material was accessed (“the
Internet publication rule”).
Relying on Article 10 (freedom of expression) of the Convention, the Times Newspapers Ltd
complained before the Strasbourg Court that the Internet publication rule breached its freedom of
expression by exposing them to ceaseless liability for libel. The European Court noted that while
Internet archives were an important source for education and historical research, the press had a
duty to act in accordance with the principles of responsible journalism, including by ensuring the
accuracy of historical information. Further, the Court observed that limitation periods in libel
proceedings were intended to ensure that those defending actions were able to defend themselves
effectively and that it was, in principle, for contracting States to set appropriate limitation
213
periods. The Court considered it significant that, although libel proceedings had been
commenced in respect of the two articles in question in December 1999, no qualification was
added to the archived copies of the articles on the Internet until December 2000. The Court noted
that the archive was managed by the applicant itself and that the domestic courts had not
suggested that the articles be removed from the archive altogether. Accordingly, the Court did
not consider that the requirement to publish an appropriate qualification to the Internet version of
the articles constituted a disproportionate interference with the right to freedom of expression.
There was accordingly no violation of Article 10.
Having regard to this conclusion, the Court did not consider it necessary to consider the broader
chilling effect allegedly created by the Internet publication rule. It nonetheless observed that, in
the present case, the two libel actions related to the same articles and both had been commenced
within 15 months of the initial publication of the articles. The Times Newspaper’s ability to
defend itself effectively was therefore not hindered by the passage of time. Accordingly, the
problems linked to ceaseless liability did not arise. However, the Court emphasised that, while
individuals who are defamed must have a real opportunity to defend their reputations, libel
proceedings brought against a newspaper after too long a period might well give rise to a
disproportionate interference with the freedom of the press under Article 10 of the Convention.
•
Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03,
ECHR 2009.
IRIS 2009-5/1
214
European Court of Human Rights: Case of Faccio v. Italy
Dirk Voorhoof
The European Court of Human Rights has declared inadmissible the application in a case
concerning the sealing by the authorities of a television set because a person had not paid his
licence fee.
In 1999, the applicant, Mr. Faccio, filed a request with the Radiotelevisione italiana (RAI)
subscriptions bureau to terminate his subscription to the public television service. On 29 August
2003, the tax police sealed his television set in a nylon bag so that it could no longer be used.
Relying on Article 10 (freedom of expression) and Article 8 (right to respect for private and
family life) of the European Convention on Human Rights, Mr. Faccio complained before the
Court of a violation of his right to receive information and of his right to respect for his private
and family life. He alleged that the act of making his television set unusable was a
disproportionate measure, as it also prevented him from watching private channels. He further
relied on Article 1 of Protocol No. 1 (protection of property) to the Convention.
The European Court of Human Rights noted that it was not in dispute that the sealing of the
television set had constituted interference with the applicant’s right to receive information and
with his right to respect for his property and for his private life. It further found that the measure,
taken under the provisions of Italian law, had pursued a legitimate aim: to dissuade individuals
from failing to pay a tax or, in other words, to dissuade them from terminating their subscriptions
to the public television service. The licence fee represents a tax that is used for the financing of
the public broadcasting service. In the Court’s view, regardless of whether or not Mr. Faccio
wished to watch programmes on public channels, the mere possession of a television set obliged
him to pay the tax in question. Moreover, a system whereby viewers would be able to watch only
private channels without paying the licence fee, assuming that this were technically feasible,
would amount to depriving the tax of its very nature, since it is a contribution to a community
service and not the price paid by an individual in return for receiving a particular channel.
In view of the foregoing considerations and the reasonable amount of the tax (which, by way of
example, amounts to EUR 107.50 for 2009), the Court concluded that the measure consisting of
sealing the applicant’s television set in a bag was proportionate to the aim pursued by the Italian
authorities. It thus declared the application manifestly ill-founded.
•
Bruno Antonio Faccio v. Italy (dec.), no. 33/04, 31 March 2009.
IRIS 2009-6/1
215
European Court of Human Rights: Case of A. v. Norway
Dirk Voorhoof
The European Court in a recent judgment clarified the relation of the freedom of the press (Art.
10) vis à vis the right of privacy (Art. 8) and the presumption of innocence (Art. 6 para. 2) in a
case of crime-reporting in the media. The applicant, A, is a Norwegian national with a criminal
past. The case concerns A’s complaint about the unfavourable outcome of a defamation suit he
brought against the Fœdrelandsvennen newspaper, following its publication of two articles
concerning the preliminary investigation into a murder case which implicated him. A had been
questioned as a possible witness about the murder of two young women, but was released after
10 hours. The police’s interest in A attracted considerable media attention. Fœdrelandsvennen
disclosed details of A’s criminal convictions and stated that he had allegedly been seen by
witnesses in the very same area and at the same time as the girls were killed. A television station,
TV2, also reported in a news broadcast on the case and presented A as a murderer.
A brought defamation proceedings against the Fœdrelandsvennen newspaper and TV2, as further
investigation and proceedings made it clear that he had nothing to do with the murder case. The
Norwegian courts found in his favour and awarded him compensation as regards the TV2 report.
In respect of the newspaper articles, however, the domestic courts agreed that the publications
had been defamatory, in as much as they were capable of giving the ordinary reader the
impression that the applicant was regarded as the most probable perpetrator of the murders, yet
concluded that, on balance, the newspaper had been right to publish the articles, as it had acted in
the interest of the general public, which had the right to be informed of the developments in the
investigation and the pursuit of the perpetrators. Relying on Article 6§2 (presumption of
innocence) and Article 8 (right to respect for private and family life), A complained in
Strasbourg that the domestic courts’ findings - to the extent that the Fœdrelandsvennen
newspaper was found to have a right to publish defamatory material about him - had negatively
affected his right to be presumed innocent until proven otherwise, as well as his private life.
The Court dismissed A’s allegations under Article 6 para. 2, as it found that Article not
applicable to the matters at hand, given in particular that no public authority had charged A with
a criminal offence and that the disputed newspaper publications did not amount to an affirmation
that he was guilty of the crimes in question. The Court, however, was of the opinion that the
articles had been defamatory in nature, as they had given the impression that the applicant had
been a prime suspect in the murder case of the two girls. While it is undisputed that the press
have the right to deliver information to the public and the public have the right to receive such
information, these considerations did not justify the defamatory allegations against A and the
consequent harm done to him. Indeed, the applicant had been persecuted by journalists seeking
to obtain pictures and interviews from him, this being during a period in his life when he had
been undergoing rehabilitation and reintegration into society. As a result of the journalistic
reports, he found himself unable to continue his work, had to leave his home and was driven to
social exclusion. In the Court's view there was no reasonable relationship of proportionality
between the interests relied on by the domestic courts in safeguarding Fædrelandsvennen'
216
freedom of expression and those of the applicant in having his honour, reputation and privacy
protected. The Court was therefore not satisfied that the national courts struck a fair balance
between the newspaper's freedom of expression under Article 10 and the applicant's right to
respect for his private life under Article 8, notwithstanding the wide margin of appreciation
available to the national authorities. The Court concluded that the publications in question had
gravely damaged A’s reputation and honour and had been especially harmful to his moral and
psychological integrity and to his private life, in violation of Article 8.
•
A. v. Norway, no. 28070/06, 9 April 2009.
IRIS 2009-6/2
217
European Court of Human Rights: Case of TASZ v. Hungary
Dirk Voorhoof
In April 2009, the European Court of Human Rights delivered an important judgment in which it
recognised the right of access to official documents. The Court made it clear that, when public
bodies hold information that is needed for public debate, the refusal to provide documents in this
matter to those who are requesting access, is a violation of the right to freedom of expression and
information guaranteed under Article 10 of the Convention. The case concerns a request by the
Társaság a Szabadságjogokért (Hungarian Civil Liberties Union - TASZ) to Hungary’s
Constitutional Court to disclose a parliamentarian's complaint questioning the legality of new
criminal legislation concerning drug-related offences. The Constitutional Court refused to release
the information. As the Court found that the applicant was involved in the legitimate gathering of
information on a matter of public importance and that the Constitutional Court's monopoly of
information amounted to a form of censorship, it concluded that the interference with the
applicant's rights was a violation of Article 10 of the Convention.
The European Court’s judgment refers to the “censorial power of an information monopoly”,
when public bodies refuse to release information needed by the media or civil society
organisations to perform their “watchdog” function. The Court refers to its consistent case law,
in which it has recognised that the public has a right to receive information of general interest
and that the most careful scrutiny on the part of the Court is called for when the measures taken
by the national authority are capable of discouraging the participation of the press, one of
society's “watchdogs”, in the public debate on matters of legitimate public concern, including
measures which merely make access to information more cumbersome. It is also underlined that
the law cannot allow arbitrary restrictions, which may become a form of indirect censorship
should the authorities create obstacles to the gathering of information, this by itself being an
essential preparatory step in journalism and inherently a protected part of press freedom. The
Court emphasised once more that the function of the press, including the creation of forums of
public debate, is not limited to the media or professional journalists. Indeed, in the present case,
the preparation of the forum of public debate was conducted by a non-governmental
organisation. The Court recognises the important contribution of civil society to the discussion of
public affairs and categorised the applicant association, which is involved in human rights
litigation, as a social “watchdog”. The Court is of the opinion that, in these circumstances, the
applicant’s activities warrant similar Convention protection to that afforded to the press.
Furthermore, given that the applicant's intention was to impart to the public the information
gathered from the constitutional complaint in question, and thereby to contribute to the public
debate concerning legislation on drug-related offences, its right to impart information was clearly
impaired.
It should be emphasised that the European Court’s judgment is obviously a further step in the
direction of the recognition by the Court of a right of access to public documents under Article
10 of the Convention, although the Court is still reluctant to affirm this explicitly. The Court
recalls that “Article 10 does not (..) confer on the individual a right of access to a register
218
containing information on his personal position, nor does it embody an obligation on the
Government to impart such information to the individual” and that “it is difficult to derive from
the Convention a general right of access to administrative data and documents”. But the
judgment also states that “the Court has recently advanced towards a broader interpretation of the
notion of “freedom to receive information” (..) and thereby towards the recognition of a right of
access to information”, referring to its decision in the case of Sdruženi Jihočeské Matky v. Czech
Republic (ECHR 10 July 2006, Appl. No. 19101/03). The Court notes that “the right to freedom
to receive information basically prohibits a Government from restricting a person from receiving
information that others wish or may be willing to impart to him”. In this case, the information
sought by the applicant was ready and available and did not require the collection of any data by
the Government. Therefore, the Court considers that the State had an obligation not to impede
the flow of information sought by the applicant.
•
Társaság a Szabadságjogokért v. Hungary, no. 37374/05, 14 April 2009.
IRIS 2009-7/1
219
European Court of Human Rights: Case of Kenedi v. Hungary
Dirk Voorhoof
In May 2009, the Court confirmed once more the applicability of the right to freedom of
expression and information guaranteed under Article 10 of the Convention to matters of access to
official documents. The case concerns the attempt by a historian, Mr. János Kenedi, to have
access to certain documents deposited at the Ministry of the Interior regarding the functioning of
the State Security Services in Hungary in the 1960s. Mr Kenedi, who had previously published
several books on the functioning of secret services in totalitarian regimes, complained to the
European Court about the Hungarian authorities’ protracted reluctance to enforce a court order
granting him unrestricted access to these documents. For several years Kenedi tried to get access
to the relevant information from the Ministry, but to no avail. After continued refusals, he
obtained domestic court orders to enforce access. The Ministry, however, continued to obstruct
him, for example by requiring that Kenedi sign a declaration of confidentiality. Kenedi refused,
among other reasons because the Court order had not mentioned confidentiality as a requirement.
At the time of the proceedings in Strasbourg, Kenedi still had not been granted access to all the
documents he had requested.
The European Court held unanimously that there had been a violation of Article 6 § 1 (right to a
fair hearing) of the European Convention on Human Rights, on account of the excessive length
of the proceedings - over ten years - that Mr Kenedi had launched so as to gain and enforce his
access to documents concerning the Hungarian secret services. Article 10 (freedom of expression
and information) was also violated in the Court's view. It reiterated that "access to original
documentary sources for legitimate historical research was an essential element of the exercise of
the applicant's right to freedom of expression". The Court noted that Mr Kenedi had obtained a
court judgment granting him access to the documents in question, while the domestic courts had
repeatedly found in his favour in the ensuing enforcement proceedings. The administrative
authorities had persistently resisted their obligation to comply with the domestic judgment, thus
hindering Mr Kenedi’s access to documents he needed to write his study. The Court concluded
that the authorities had acted arbitrarily and in defiance of domestic law. Their obstructive
actions had also led to the finding of a violation of Article 6 § 1 of the Convention. The Court
held, therefore, that the authorities had misused their powers by delaying Mr Kenedi in the
exercise of his right to freedom of expression, in violation of Article 10.
Finally, Article 13 ECHR (effective remedy) had also been violated, since the Hungarian system
did not provide for an effective way of remedying the violation of Mr Kenedi’s freedom of
expression in this situation. The Court found that the procedure available in Hungary at the time
and designed to remedy the violation of Mr Kenedi’s Article 10 rights had proven ineffective.
There had, therefore, been a violation of Article 13, in conjunction with Article 10 of the
Convention.
Again, the Court does not formulate a general right of access to (official) documents. The Court
is however of the opinion that the granting of access was necessary for the applicant to
220
accomplish the publication of a historical study. The Court noted that the intended publication
fell within the applicant’s freedom of expression, as guaranteed by Article 10 of the Convention.
•
Kenedi v. Hungary, no. 31475/05, 26 May 2009.
IRIS 2009-7/104
221
European Court of Human Rights: Case of Féret v. Belgium
Dirk Voorhoof
In an interesting but highly controversial judgment, the European Court focused on the limits of
freedom of expression in a case of incitement to hatred and discrimination (“hate speech”). The
Court held by four votes to three that there had been no violation of Article 10 of the European
Convention of Human Rights in respect of the conviction of the chairman of the Belgian political
party “Front National”, Mr. Daniel Féret. Mr. Féret was convicted by a Belgian criminal court
for publicly inciting to racism, hatred and discrimination, following complaints concerning
leaflets distributed by the Front National during election campaigns.
Between July 1999 and October 2001, the distribution of leaflets and posters by the Front
National led to complaints by individuals and associations for incitement to hatred,
discrimination and violence, filed under the law of 30 July 1981, which penalised certain acts
and expressions inspired by racism or xenophobia. Mr. Féret was the editor in chief of the party’s
publications and was a member of the Belgian House of Representatives at the time. His
parliamentary immunity however was waived at the request of the Public Prosecutor and in
November 2002 criminal proceedings were brought against Féret as author and editor-in-chief of
the offending leaflets, which were also distributed on the Internet on the website of Féret and
Front National.
In 2006, the Brussels Court of Appeal found that the offending conduct on the part of Mr. Féret
had not fallen within his parliamentary activity and that the leaflets contained passages that
represented a clear and deliberate incitement to discrimination, segregation or hatred, for reasons
of race, colour or national or ethnic origin. The court sentenced Mr. Féret to 250 hours of
community service related to the integration of immigrants, commutable to a 10-month prison
sentence. It declared him ineligible to stand for parliament for ten years and ordered him to pay
EUR 1 to each of the civil parties.
Relying on Article 10 of the European Convention on Human Rights, Féret applied to the
European Court of Human Rights alleging that the conviction for the content of his political
party’s leaflets represented an excessive restriction on his right to freedom of expression. The
European Court however disagreed with this assumption, as it considered that the sanction by the
Belgian authorities was prescribed by law sufficiently precisely and was necessary in a
democratic society for the protection of public order and for the protection of the reputation and
the rights of others, thereby meeting the requirements of Article 10 § 2 of the Convention. The
European Court observed that the leaflets presented immigrant communities as criminallyminded and keen to exploit the benefits they derived from living in Belgium and that they also
sought to make fun of the immigrants concerned, with the inevitable risk of arousing, particularly
among less knowledgeable members of the public, feelings of distrust, rejection or even hatred
towards foreigners. Although the Court recognised that freedom of expression is especially
important for elected representatives of the people, it reiterated that it was crucial for politicians,
222
when expressing themselves in public, to avoid comments that might foster intolerance. The
impact of racist and xenophobic discourse was magnified by the electoral context, in which
arguments naturally become more forceful. To recommend solutions to immigration-related
problems by advocating racial discrimination was likely to cause social tension and undermine
trust in democratic institutions. In the present case there had been a compelling social need to
protect the rights of the immigrant community, as the Belgian courts had done. With regard to
the penalty imposed on Mr. Féret, the European Court noted that the Belgian authorities had
preferred a 10-year period of ineligibility to stand for parliament rather than a penal sanction, in
accordance with the Court’s principle of restraint in criminal proceedings. The Court thus found
that there had been no violation of Article 10 of the Convention. The Court furthermore found
that Article 17 of the Convention (abuse clause) was not applicable in this case. Three dissenting
judges disagreed with the findings of the Court on the non-violation of Article 10, arguing that
the leaflets were in essence part of a sharp political debate during election time. The dissenting
judges expressed the opinion that the leaflets did not incite to violence nor to any concrete
discriminatory act and that criminal convictions in the domain of freedom of political debate and
hate speech should only be considered as necessary in a democratic society in cases of direct
incitement to violence or discriminatory acts. They argued that the reference to a potential
impact of the leaflets in terms of incitement to discrimination or hatred does not sufficiently
justify an interference with freedom of expression. The dissenting judges also emphasised the
disproportionate character of the sanction of 250 hours of community service or a 10-month
suspended prison sentence, together with the Belgian Court’s decision declaring Mr. Féret’s
ineligibility to stand for parliament for a period of ten years. The majority of the European Court
however could not be persuaded by the dissenting judges’ arguments: the four judges of the
majority were of the opinion that the Belgian authorities acted within the scope of the justified
limitations restricting freedom of political expression, as the litigious leaflets contained, in the
eyes if the Court, incitement to hatred and discrimination based on nationality or ethnic origin.
•
Féret v. Belgium, no. 15615/07, 16 July 2009.
IRIS 2009-8/1
223
European Court of Human Rights: Case of Wojtas-Kaleta v. Poland
Dirk Voorhoof
In one of its recent judgments the European Court of Human Rights found that the freedom of
expression of a journalist employed by the Polish public television broadcaster (Telewizja Polska
Spółka Akcjna, TVP) had been unduly restricted. The journalist, Helena Wojtas-Kaleta, received
a disciplinary sanction after criticising in public the direction the TVP had taken. This sanction,
and its confirmation by the Polish courts, was found to constitute a violation of Article 10 of the
European Convention for Human Rights.
In 1999 the national newspaper Gazeta Wyborcza published an article reporting that two
classical music programmes had been taken off the air by TVP. The article quoted an opinion
expressed by Ms Wojtas-Kaleta in her capacity as the President of the Polish Public Television
Journalists’ Union, in which she criticised this decision of the director of TVP. In addition, Ms
Wojtas-Kaleta signed an open letter in protest at the above measure. The letter was addressed to
the Board of TVP and stated among other things that, while classical music is the heritage of the
nation, its continuous dissemination was seriously jeopardised by reducing its time on the air and
by instead polluting air time with violence and pseudo-musical kitsch. Ms Wojtas-Kaleta was
reprimanded in writing by her employer for failing to observe the company’s regulations, which
required her to protect her employer’s good name. Following an unsuccessful objection to the
reprimand, she brought a claim against TVP before the district court, requesting the withdrawal
of the reprimand. However, first the district court and subsequently the court of appeal dismissed
her claim and found that Ms Wojtas-Kaleta had behaved in an unlawful manner and that this was
a necessary and sufficient prerequisite for the disciplinary measure imposed on her. The courts
found that she had acted to the detriment of her employer by breaching her obligation of loyalty
and, consequently, the employer had been entitled to impose the reprimand.
Ms Wojtas-Kaleta complained in Strasbourg that the Polish judicial authorities had violated her
freedom of expression by taking into account merely her obligations as an employee, while
disregarding her right as a journalist to comment on matters of public interest. The Court
considered that, where a State has decided to create a public broadcasting system, the domestic
law and practice have to guarantee that the system provides a pluralistic audiovisual service. The
Polish public television company had been entrusted with a special mission including, among
other things, assisting the development of culture, with emphasis on the national intellectual and
artistic achievements. In her comments and open letter Ms Wojtas-Kaleta had essentially referred
to widely-shared concerns of public interest about the declining quality of music programmes on
public television, while her statements had relied on a sufficient factual basis and, at the same
time, amounted to value judgments which were not susceptible to proof. The Court further noted
that Ms Wojtas-Kaleta had to enjoy freedom of expression in all her capacities: as an employee
of a public television company, as a journalist or as a trade union leader. The Court observed that
the Polish courts took no note of her argument that she had been acting in the public interest.
They limited their analysis to a finding that her comments amounted to acting to the employer's
detriment. As a result, they did not examine whether or how the subject matter of Ms Wojtas224
Kaleta’s comments and the context in which they had been made could have affected the
permissible scope of her freedom of expression. Such an approach is not compatible with
Convention standards. The Court noted that the tone of the impugned statements was measured
and that she did not make any personal accusations against named members of the management.
Finally, the journalist’s good faith had never been challenged either by her employer or by the
domestic authorities involved in the proceedings. Being mindful of the importance of the right to
freedom of expression on matters of general interest, Ms Wojtas-Kaleta’s professional
obligations and responsibilities as a journalist, and of the duties and responsibilities of employees
towards their employers, as well as having weighed up the other different interests involved in
the present case, the Court came to the conclusion that the interference with her right to freedom
of expression was not “necessary in a democratic society”. Accordingly, the Court held that there
had been a violation of Article 10.
•
Wojtas-Kaleta v. Poland, no. 20436/02, 16 July 2009.
IRIS 2009-9/1
225
European Court of Human Rights: Case of Manole a.o. v Moldova
Dirk Voorhoof
The European Court of Human Rights found that from February 2001 until September 2006 the
Moldovan authorities violated freedom of expression by not sufficiently guaranteeing the
independence of Teleradio-Moldova (TRM), the State-owned broadcasting company, which
became a public broadcasting company in 2002. Nine journalists, editors and producers, who
were all employed by TRM during that period, complained that the public broadcasting company
was subjected to political control by the government and the ruling political party, with a lack of
guarantees of pluralism in its editorial policy and news and information programmes. Relying on
Article 10 of the European Convention, they complained that as journalists at TRM they were
subjected to a censorship regime. They also claimed that the political control over news and
political information worsened after February 2001, when the Communist Party won a large
majority in Parliament: senior TRM management was replaced by those who were loyal to the
Government, only a trusted group of journalists were used for reports of a political nature, which
where then edited to present the ruling party in a favourable light, other journalists were
reprimanded, interviews were cut and programmes were taken off the air, while opposition
parties were allowed only very limited opportunities to express their views. After a strike by
TRM journalists protesting against the government’s media policy and control over TRM, a large
number of journalists were not retained in their posts during a structural reorganisation of TRM.
The journalists claimed that they were dismissed for political reasons and appealed the decision
in court. They were unsuccessful, however. In the meantime, a number of reports by
international organisations and non-governmental organisations, such as the Council of Europe,
the OSCE and the Moldovan Centre for Independent Journalism (IJC), affirmed that domestic
law in Moldova did not sufficiently guarantee the independence of editorial policy at TRM and
that the political parties of the opposition were not adequately represented in TRM news and
information programmes. The nine journalists lodged an application with the European Court in
March 2002, arguing that their right to freedom of expression had been violated, due to the
censorship regime imposed on them. They also claimed that the Moldovan State had not
discharged its positive obligations under Article 10, because it had failed to enact legislation
which would offer safeguards against abusive interferences by public authorities.
In its judgment, the European Court took as the starting point of its reasoning the fundamental
truism that there can be no democracy without pluralism. A situation whereby a powerful
economic or political group in a society is permitted to obtain a position of dominance over the
audiovisual media and thereby exercise pressure on broadcasters and eventually curtail their
editorial freedom undermines the fundamental role of freedom of expression in a democratic
society, as enshrined in Article 10 of the Convention, in particular where it serves to impart
information and ideas of general interest, which the public is moreover entitled to receive. The
Court further observed that it is the State itself that must be the ultimate guarantor of pluralism
and that the State has a duty to ensure that the public has access through television and radio to
impartial and accurate information and a range of opinions and comments, reflecting the
diversity of political outlook within the country. Journalists and other professionals working in
226
the audiovisual media should not be prevented from imparting this information and commentary.
Furthermore, it is indispensable for the proper functioning of democracy that a (dominant) public
broadcaster transmits impartial, independent and balanced news, information and comment and,
in addition, provides a forum for public discussion in which as broad a spectrum as possible of
views and opinions can be expressed. The Court concluded, on the basis of the evidence and
reports by the Council of Europe, the OSCE and IJC, that there was a significant bias towards
reporting on the activities of the President and the Government in TRM’s television news and
other programming and that this policy by TRM had indeed affected the applicants as journalists,
editors and producers at TRM. The Court also found that domestic law from February 2001
onwards did not provide any guarantee of political balance in the composition of TRM’s senior
management and supervisory body nor any safeguard against interference from the ruling
political party in the bodies’ decision-making and functioning. Also, after 2002, there was no
safeguard to prevent 14 of the 15 members of the Observers’ Council being appointees loyal to
the ruling party, despite the fact that this Council was precisely responsible for appointing
TRM’s senior management and monitoring its programmes for accuracy and objectivity. In the
light, in particular, of the virtual monopoly enjoyed by TRM over audiovisual broadcasting in
Moldova, the Court found that the Moldovan State authorities failed to comply with their
positive obligation. The legislative framework throughout the period in question was flawed: it
did not provide sufficient safeguards against the control of TRM's senior management, and thus
its editorial policy, by the political organ of the Government. As Moldovan law did not provide
any mechanism or effective domestic remedy to challenge at the national level the administrative
practice of censorship and political control over TRM, the Court also rejected the Moldovan
Government’s objection that the applicants had not exhausted the remedies available to them
under national law, as required by Article 35 para. 1 of the Convention. On that basis, the Court
found a violation of Article 10 of the Convention.
•
Manole and Others v. Moldova, no. 13936/02, ECHR 2009.
IRIS 2009-10/1
227
European Court of Human Rights: Case of Verein Gegen Tierfabriken Schweiz (VgT) v
Switzerland
Dirk Voorhoof
After two earlier judgments by the European Court of Human Rights, the Grand Chamber of the
Court again held that there has been a violation of Article 10 (freedom of expression) of the
European Convention on Human Rights on account of the continued prohibition on broadcasting
on Swiss Television a commercial by an animal rights association. In response to various
advertisements produced by the meat industry, Verein gegen Tierfabriken Schweiz (VgT) made
a television commercial expressing criticism of battery pig-farming, including a scene showing a
noisy hall with pigs in small pens. The advertisement concluded with the exhortation: “Eat less
meat, for the sake of your health, the animals and the environment!” Permission to broadcast the
commercial was refused on 24 January 1994 by the Commercial Television Company and at
final instance by the Federal Court, which dismissed an administrative law appeal by VgT on 20
August 1997. The commercial was considered to be political advertising, prohibited under the
Swiss Broadcasting Act. VgT lodged an application with the European Court of Human Rights,
which in a judgment of 28 June 2001 (see IRIS 2001-7: 2) held that the Swiss authorities’ refusal
to broadcast the commercial in question was a breach of freedom of expression. According to the
European Court, VgT had simply intended to participate in an ongoing general debate on the
protection and rearing of animals and the Swiss authorities had not demonstrated in a relevant
and sufficient manner why the grounds generally advanced in support of the prohibition on
political advertising could also serve to justify interference in the particular circumstances of the
case. The Court found a violation of Article 10 of the Convention and awarded VgT CHF 20,000
(approximately EUR 13,300 at the time) in costs and expenses.
On 1 December 2001, on the basis of the European Court’s judgment, VgT applied to the Swiss
Federal Court for a review of the final domestic judgment prohibiting the commercial from being
broadcast. In a judgment of 29 April 2002 the Federal Court however dismissed the application,
holding among other things that VgT had not demonstrated that there was still any purpose in
broadcasting the commercial. As the Committee of Ministers of the Council of Europe, which is
responsible for supervising the execution of the European Court’s judgments, had not been
informed that the Federal Court had dismissed VgT’s application for a review, it adopted a final
resolution regarding the case in July 2003, referring to the possibility of applying to the Federal
Court to reopen the proceedings.
In July 2002, VgT lodged an application with the European Court concerning the Federal Court’s
refusal of its request to reopen the proceedings and the continued prohibition on broadcasting its
television commercial. In a Chamber judgment of 4 October 2007, the European Court held by
five votes to two that there had been a violation of Article 10. On 31 March 2008, the panel of
the Grand Chamber accepted a request by the Swiss Government for the case to be referred to
the Grand Chamber under Article 43 of the Convention. The Swiss government argued inter alia
that the application by VgT was inadmissible, as it concerned a subject - execution of the Court’s
judgments - which, by virtue of Article 46, fell within the exclusive jurisdiction of the
228
Committee of Ministers of the Council of Europe. The Grand Chamber of the European Court
reiterated that the findings of the European Court of a violation were essentially declaratory and
that it was the Committee of Ministers’ task to supervise execution. The Committee of Ministers’
role in that sphere did not mean, however, that measures taken by a respondent State to remedy a
violation found by the Court could not raise a new issue and thus form the subject of a new
application. In the present case, the Federal Court’s judgment of 29 April 2002 refusing to
reopen the proceedings had been based on new grounds and therefore constituted new
information of which the Committee of Ministers had not been informed and which would
escape all scrutiny under the Convention if the Court were unable to examine it. Accordingly, the
Government’s preliminary objection on that account was dismissed.
On the merits of the case, the Court firstly noted that the refusal of VgT’s application to reopen
the proceedings following the Court’s judgment of 28 June 2001 constituted fresh interference
with the exercise of its rights under Article 10 para. 1. The Court emphasized that freedom of
expression is one of the preconditions for a functioning democracy and that genuine, effective
exercise of this freedom does not depend merely on the State’s duty not to interfere, but could
also require positive measures. In the present case, Switzerland had been under an obligation to
execute the Court’s judgment of 28 June 2001 in good faith, abiding by both its conclusions and
its spirit. In view of this, the reopening of domestic proceedings had admittedly been a
significant means of ensuring the full and proper execution of the Court’s judgment, but could
certainly not be seen as an end in itself, especially since the Federal Court dismissed the
application of VgT on overly formalistic grounds. Moreover, by deciding that VgT had not
sufficiently shown that it still had an interest in broadcasting the commercial, the Federal Court
did not offer an explanation of how the public debate on battery farming had changed or become
less topical since 1994, when the commercial was initially meant to have been broadcast. Nor did
it show that after the European Court's judgment of 28 June 2001 the circumstances had changed
to such an extent as to cast doubt on the validity of the grounds on which the Court had found a
violation of Article 10. The European Court also rejected the argument that VgT had alternative
options for broadcasting the commercial in issue, for example via private and regional channels,
since that would require third parties, or VgT itself, to assume a responsibility that falls to the
national authorities alone: that of taking appropriate action on a judgment of the European Court.
Finally the argument that the broadcasting of the commercial might be seen as unpleasant, in
particular by consumers or meat traders and producers, could not justify its continued
prohibition, as freedom of expression is also applicable to “information” or “ideas” that offend,
shock or disturb. Such are indeed the demands of pluralism, tolerance and broadmindedness,
without which there is no “democratic society”. In the absence of any new grounds that could
justify continuing the prohibition from the standpoint of Article 10, the Swiss authorities had
been under an obligation to authorise the broadcasting of the commercial, without taking the
place of VgT in judging whether the debate in question was still a matter of public interest. The
Court therefore held by 11 votes to six that there had been a violation of Article 10. Under
Article 41 (just satisfaction) of the Convention the Court awarded VgT EUR 4,000 in costs and
expenses.
•
Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, ECHR
2009.
229
IRIS 2009-10/2
230
European Court of Human Rights: Case of Pasko v. Russia
Dirk Voorhoof
The European Court of Human Rights found no violation of Article 10 of the Convention in the
highly controversial case of Pasko v. Russia. The case concerns Grigoriy Pasko, a Russian
national who at the time of the events was a naval officer and worked as a military journalist on
the Russian Pacific Fleet’s Newspaper “Boyevaya Vakhta”. Mr Pasko had been reporting on
problems of environmental pollution, accidents with nuclear submarines, transport of military
nuclear waste and other issues related to the activities of the Russian Pacific Fleet. Mr Pasko had
also been in contact on a free-lance basis with a Japanese TV station and a newspaper and had
supplied them with openly available information and video footage. These contacts with
Japanese journalists and a Japanese TV station and newspaper were pursued by Mr Pasko of his
own volition and were not reported to his superiors.
In November 1997, Mr Pasko was searched at the Vladivostok airport before flying to Japan. A
number of his papers were confiscated with the explanation that they contained classified
information. He was arrested upon his return from Japan and charged with treason through
espionage for having collected secret information with the intention of transferring it to a foreign
national. Mr Pasko was sentenced in December 2001 to four years’ imprisonment by the Pacific
Military Fleet Court, as he was found guilty of treason through espionage for having collected
secret and classified information containing actual names of highly critical and secure military
formations and units, with the intention of transferring this information to a foreign national. He
was released on parole in January 2003.
Relying on Articles 7 (no punishment without law) and 10 of the European Convention of
Human Rights, Mr Pasko complained that the Russian authorities had applied criminal
legislation retrospectively and had subjected him to an overly broad and politically motivated
criminal persecution as a reprisal for his critical publications. The Court considered that the
essence of the case was the alleged violation of Article 10, since Mr Pasko’s complaints under
Article 7 concerned the same facts as those related to Article 10. The Court therefore decided to
examine the complaints under Article 10 only.
After having accepted that the Russian authorities acted on a proper legal basis, the Court
observed that, as a serving military officer, the applicant had been bound by an obligation of
discretion in relation to anything concerned with the performance of his duties. The domestic
courts had carefully scrutinised each of his arguments. The courts had found that he had
collected and kept, with the intention of transferring to a foreign national, information of a
military nature that had been classified as a State secret and which had been capable of causing
considerable damage to national security. Finally, the applicant had been convicted of treason
through espionage as a serving military officer and not as a journalist. According to the European
Court, there was nothing in the materials of the case to support the applicant’s allegations that his
conviction had been overly broad or politically motivated or that he had been sanctioned for any
of his publications. The Court found that the domestic courts had struck the right balance of
231
proportionality between the aim of protecting national security and the means used to achieve
that purpose, namely the sentencing of the applicant to a “lenient sentence”, much less severe
than the minimum stipulated in law. Accordingly, the Court held by six votes to one that there
had not been a violation of Article 10.
•
Pasko v. Russia, no. 69519/01, 22 October 2009.
IRIS 2010-1/1
232
European Court of Human Rights: Case of Ürper a.o. v. Turkey
Dirk Voorhoof
The Court’s judgment in the case of Ürper a.o. v. Turkey firmly condemns the bans on the future
publication of four newspapers. At the material time the applicants were the owners, executive
directors, editors-in-chief, news directors and journalists of four daily newspapers published in
Turkey: Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi. The publication of all
four newspapers was suspended, pursuant to section 6(5) of the Prevention of Terrorism Act
(Law no. 3713) by various Chambers of the Istanbul Assize Court, between 16 November 2006
and 25 October 2007, for periods ranging from 15 days to a month in response to various news
reports and articles. The impugned publications were deemed to publish propaganda in favour of
a terrorist organisation, the PKK/KONGRA-GEL, as well as to express approval of crimes
committed by that organisation and its members.
The applicants alleged, under Article 10 of the Convention, that the suspension of the publication
and distribution of their newspapers constituted an unjustified interference with their freedom of
expression. The European Court reiterates that Article 10 of the Convention does not, in its
terms, prohibit the imposition of prior restraints on publication. However, the dangers inherent in
prior restraints are such that they call for the most careful scrutiny. This is especially true as far
as the press is concerned, for news is a perishable commodity and to delay its publication, even
for a short period of time, may well deprive it of all its value and interest. As freedom of the
press was at stake in the present case, the national authorities had only a limited margin of
appreciation to decide whether there was a “pressing social need” to take the measures in
question. The Court was of the opinion that, as opposed to earlier cases that have been brought
before it, the restraints under scrutiny were not imposed on particular types of news reports or
articles, but on the future publication of entire newspapers, whose content was unknown at the
time of the national court's decisions. In the Court's view, both the content of section 6(5) of Law
no. 3713 and the judges' decisions in the instant case stem from the hypothesis that the
applicants, whose “guilt” was established without trial in proceedings from which they were
excluded, would re-commit the same kind of offences in the future. The Court found, therefore,
that the preventive effect of the suspension orders entailed implicit sanctions on the applicants to
dissuade them from publishing similar articles or news reports in the future and to hinder their
professional activities. The Court considered that less draconian measures could have been
envisaged, such as the confiscation of particular issues of the newspapers or restrictions on the
publication of specific articles. The Court concluded that by suspending the publication and
distribution of the four newspapers involved, albeit for short periods, the domestic courts largely
overstepped the narrow margin of appreciation afforded to them and unjustifiably restricted the
essential role of the press as a public watchdog in a democratic society. The practice of banning
the future publication of entire periodicals on the basis of section 6(5) of Law no. 3713 went
beyond any notion of a “necessary” restraint in a democratic society and, instead, amounted to
censorship. There has accordingly been a violation of Article 10 of the Convention.
233
•
Ürper and Others v. Turkey, nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07,
47245/07, 50371/07, 50372/07 and 54637/07, 20 October 2009.
IRIS 2010-1/2
234
European Court of Human Rights: Case of Financial Times a.o. v. UK
Dirk Voorhoof
Eight years ago the British courts decided in favour of a disclosure order in the case of Interbrew
SA v. Financial Times and others. The case concerned an order against four newspapers (FT,
The Times, The Guardian and The Independent) and the news agency Reuters to deliver up their
original copies of a leaked and (apparently) partially forged document about a contemplated
takeover by Interbrew (now: Anheuser Bush InBev NV) of SAB (South African Breweries). In a
judgment of 15 December 2009, the European Court of Human Rights (Fourth Section) came to
the conclusion that this disclosure order constituted a violation of the right of freedom of
expression and information, which includes press freedom and the right of protection of
journalistic sources, as protected by Article 10 of the European Convention of Human Rights.
On the basis of a leaked report by a person X and further investigations by journalists, the British
media in November and December 2001 reported that Interbrew (now: Anheuser Bush InBev
NV) had been plotting a bid for SAB. The media coverage had a clear impact on the market on
shares of Interbrew and SAB, with Interbrew’s share price decreasing, while both the share price
and the volume of SAB’s shares traded obviously increased. At the request of Interbrew, the
High Court on 19 December 2001 ordered delivery up of the documents under the so-called
Norwich Pharmacal principle. This principle implies that if a person through no fault of his own
becomes involved in the wrongdoing of others so as to facilitate that wrongdoing, he comes
under a duty to assist the person who has been wronged by giving him full information and
disclosing the identity of the wrongdoer. The four newspapers and the news agency were ordered
not to alter, deface, dispose or otherwise deal with the documents received by person X and to
deliver up the documents to Interbrew’s solicitor within 24 hours. The newspapers and Reuters
appealed, but the disclosure order was confirmed by the Court of Appeal. In the London Court’s
judgment it was emphasised that what mattered critically in this case was the source’s purpose:
“It was on any way a maleficent one, calculated to do harm whether for profit or for spite, and
whether to the investing public or Interbrew or both.” The public interest in protecting the source
of such a leak was considered not sufficient to withstand the countervailing public interest in
letting Interbrew seek justice in the courts against the source. It was also underlined that there is
“no public interest in the dissemination of falsehood”, as the judge had found that the document,
leaked by person X to the media, was partially forged. The Court of Appeal said: “While
newspapers cannot be asked to guarantee the veracity of everything they report, they in turn have
to accept that the public interest in protecting the identity of the source of what they have been
told is disinformation may not be great.” Accordingly, the Court of Appeal dismissed the
appeals. On 9 July 2002, the House of Lords refused the newspapers leave to appeal, following
which Interbrew required that the newspapers and Reuters comply with the court order for
delivery up of the documents. The newspapers and Reuters however continued to refuse to
comply and applied to the European Court of Human Rights, arguing that their rights under
Article 10 of the Convention had been violated.
235
The European Court of Human Rights came to the conclusion that the British judicial authorities
in the Interbrew case did indeed neglect the interests related to the protection of journalistic
sources, by overemphasising the interests and arguments in favour of source disclosure. The
Court accepted that the disclosure order in the Interbrew case was prescribed by law (Norwich
Pharmacal and Section 10 of the Contempt of Court Act 1981) and was intended to protect the
rights of others and to prevent the disclosure of information received in confidence, both of
which are legitimate aims. The Court however did not consider the disclosure order to be
necessary in a democratic society. First, the Court in general terms reiterated that freedom of
expression constitutes one of the essential foundations of a democratic society and that, in that
context, the safeguards guaranteed to the press are particularly important: “protection of
journalistic sources is one of the basic conditions for press freedom. Without such protection,
sources may be deterred from assisting the press in informing the public on matters of public
interest. As a result, the vital “public watchdog” role of the press may be undermined and the
ability of the press to provide accurate and reliable reporting may be adversely affected” (§59).
Disclosure orders in relation to journalistic sources have a detrimental impact not only on the
source in question, whose identity may be revealed, but also on the newspaper against which the
order is directed, whose reputation may be negatively affected in the eyes of future potential
sources by the disclosure, and on the members of the public, who have an interest in receiving
information imparted through anonymous sources and who are also potential sources themselves.
The Court accepted that it may be true that the public perception of the principle of nondisclosure of sources would suffer no real damage when overridden in circumstances where it is
clear that a source was acting in bad faith with a harmful purpose and disclosed intentionally
falsified information. The Court made clear however that domestic courts should be slow to
assume, in the absence of compelling evidence, that these factors are present in any particular
case. The Court emphasised most importantly that “the conduct of the source can never be
decisive in determining whether a disclosure order ought to be made but will merely operate as
one, albeit important, factor to be taken into consideration in carrying out the balancing exercise
required under Article 10 §2” (§63).
Applying these principles to the Interbrew case. the European Court of Human Rights came to
the conclusion that the British Courts had given too much weight to the alleged bogus character
of the leaked document and to the assumption that the source had acted mala fide. While the
Court considered that there may be circumstances in which the source's harmful purpose would
in itself constitute a relevant and sufficient reason to make a disclosure order, the legal
proceedings against the four newspapers and Reuters did not allow X's purpose to be ascertained
with the necessary degree of certainty. The Court therefore did not place significant weight on
X's alleged purpose in the present case, but did clearly emphasise the public interest in the
protection of journalistic sources. The Court accordingly found that Interbrew's interests in
eliminating, by proceedings against X, the threat of damage through future dissemination of
confidential information and in obtaining damages for past breaches of confidence were, even if
considered cumulatively, insufficient to outweigh the public interest in the protection of
journalists' sources. The judicial order to deliver up the report at issue was considered to
constitute a violation of Article 10 of the Convention. The European Court was unanimous in its
judgment, although it took the Court seven years to come to its conclusion.
236
•
Financial Times Ltd and Others v. the United Kingdom, no. 821/03, 15 December 2009.
IRIS 2010-2/1
237
European Court of Human Rights: Case of Laranjeira Marques da Silva v. Portugal
Dirk Voorhoof
In one of its first judgments of 2010 the European Court of Human Rights has clarified how
court and crime reporting can rely on the right to freedom of expression guaranteed by Article 10
of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Convicting a journalist or a publisher for breach of the secrecy of a criminal investigation or
because of defamation of a politician can only be justified when it is necessary in a democratic
society and under very strict conditions.
The applicant in this case, Mr Laranjeira Marques da Silva, was the editor of the regional weekly
newspaper Notícias de Leiria at the relevant time. In 2000 he wrote two articles about criminal
proceedings brought against J., a doctor and politician well-known in the region, for the sexual
assault of a patient. In an editor’s note he called upon readers to supply further testimonies
relating to other possible incidents of a similar nature involving J. A short time later Mr
Laranjeira Marques da Silva was charged with a breach of the segredo de justiça, a concept
similar to confidentiality of judicial investigation, and with the defamation of J. The Leiria
District Court held in 2004 that Mr Laranjeira Marques da Silva had overstepped his
responsibilities as a journalist and had aroused widespread suspicion of J. by insinuating, without
justification, that the latter had committed similar acts involving other victims. He was found
guilty of a breach of the segredo de justiça and of defamation. He was sentenced to a daily fine
payable within 500 days and ordered to pay EUR 5,000 in damages to J. On appeal, the applicant
challenged his conviction concerning the segredo de justiça on the ground that he had obtained
access to the information in question lawfully. On the defamation issue, he argued that he had
simply exercised his right to freedom of expression and that his articles had been based on fact
and, moreover, were related to a subject of general interest. The Court of Appeal dismissed his
appeal in 2005. A constitutional appeal and later an extraordinary appeal seeking harmonisation
of the case law with the Supreme Court were also unsuccessful. In Strasbourg, Mr. Laranjeira
Marques da Silva complained essentially that his conviction had infringed his right to freedom of
expression.
As to the applicant’s conviction for breach of the segredo de justiça, the European Court was of
the opinion that the Portuguese authorities’ interference with his freedom of expression had been
“prescribed by law” and that the interference in question had pursued the legitimate aim of
protecting the proper administration of justice and the reputation of others. The Court however
pointed out that neither the concern of safeguarding the investigation nor the concern of
protecting the reputation of others can prevail over the public’s interest in being informed of
certain criminal proceedings conducted against politicians. It stressed that in this case there was
no evidence of any damaging effects on the investigation, which had been concluded by the time
the first article was published. The publication of the articles did not breach the presumption of
innocence, as the case of Mr. J. was in hands of professional judges. Furthermore, there was
nothing to indicate that the conviction of Mr. Laranjeira Marques da Silva had contributed to the
protection of the reputation of others. The Court held unanimously that the interference with the
238
right of freedom of expression of the applicant was disproportionate and that therefore there had
been a violation of Article 10.
As to the conviction for defamation, the Court accepted that the disputed articles dealt with
matters of general interest, as the public had the right to be informed about investigations
concerning politicians, including investigations which did not, at first sight, relate to their
political activities. Furthermore, the issues before the courts could be discussed at any time in the
press and by the public. As to the nature of the two articles, the Court pointed out that Mr
Laranjeira Marques da Silva had simply imparted information concerning the criminal
proceedings in question, despite adopting a critical stance towards the accused. The Court
observed that it was not its place or that of the national courts to substitute their own views for
those of the press as to what reporting techniques should be adopted in the journalistic coverage
of a court case. As to the editor’s note, the Court took the view that, notwithstanding one
sentence that was more properly to be regarded as a value judgment, it had a sufficient factual
basis in the broader context of the media coverage of the case. Hence, while the reasons given by
the national courts for Mr Laranjeira Marques da Silva’s conviction had been relevant, the
authorities had not given sufficient reasons justifying the necessity of the interference with the
applicant’s right to freedom of expression. The Court further noted that the penalties imposed on
the applicant had been excessive and liable to discourage the exercise of media freedom. The
Court therefore held, by five votes to two, that the conviction for defamation did not correspond
to a pressing social need and that there had been a violation of Article 10 of the Convention.
•
Laranjeira Marques da Silva v. Portugal, no. 16983/06, 19 January 2010.
IRIS 2010-3/1
239
European Court of Human Rights: Case of Alfantakis v. Greece
Dirk Voorhoof
The European Court of Human Rights recently delivered a judgment on the right to freedom of
expression of a lawyer convicted for the insult and defamation of a public prosecutor during a
television interview. In a case that received considerable media coverage, Georgis Alfantakis, a
lawyer in Athens, was representing a popular Greek singer (A.V.). The singer had accused his
wife, S.P., of fraud, forgery and use of forged documents causing losses to the State of nearly
EUR 150,000. On the recommendation of the public prosecutor at the Athens Court of Appeal,
D.M., it was decided not to bring charges against S.P. While appearing live as a guest on
Greece’s main television news programme ‘Sky’, Mr Alfantakis expressed his views on the
criminal proceedings in question, commenting in particular that he had “laughed” on reading the
public prosecutor’s report, which he described as a “literary opinion showing contempt for his
client”. The public prosecutor sued Mr Alfantakis for damages, arguing that his comments had
been insulting and defamatory. Mr Alfantakis was ordered by the Athens Court of Appeal to pay
damages of about EUR 12,000. Alfantakis applied to the European Court of Human Rights,
relying on Article 10 of the European Convention of Human Rights. He complained about the
civil judgment against him which he considered an unacceptable interference in his freedom of
expression.
According to the European Court it was not disputed that the interference by the Greek
authorities with Alfantakis’s right to freedom of expression had been ‘prescribed by law’ - by
both the Civil Code and the Criminal Code - and had pursued the legitimate aim of protecting the
reputation of others. The Court took notice of the fact that the offending comments were directed
at a member of the national legal service, thus creating the risk of a negative impact both on that
individual’s professional image and on public confidence in the proper administration of justice.
Lawyers are entitled to comment in public on the administration of justice, but they are also
expected to observe certain limits and rules of conduct. However, instead of ascertaining the
direct meaning of the phrase uttered by the applicant, the Greek courts had relied on their own
interpretation of what the phrase might have implied. In doing so, the domestic courts relied on
particularly subjective considerations, potentially ascribing to the applicant intentions he had not
in fact had. Nor had the Greek courts made a distinction between facts and value judgments,
instead simply determining the effect produced by the phrases “when I read it, I laughed” and
“literary opinion”. The Greek courts had also ignored the extensive media coverage of the case,
in the context of which Mr Alfantakis’s appearance on the television news was more indicative
of an intention to defend his client’s arguments in public than of a desire to impugn the public
prosecutor’s character. Lastly, they had not taken account of the fact that the comments had been
broadcast live and could therefore not be rephrased. The Court came to the conclusion that the
civil judgment ordering Mr Alfantakis to pay damages was not based on sufficient and pertinent
arguments and therefore had not met a “pressing social need”. Hence, there had been a violation
of Article 10. The Court awarded Mr Alfantakis EUR 12,939 in pecuniary damages.
•
Alfantakis v. Greece, no. 49330/07, 11 February 2010.
240
IRIS 2010-4/2
241
European Court of Human Rights: Flinkkilä a.o. and four other connected cases v. Finland
Dirk Voorhoof
The European Court of Human Rights in five judgments of 6 April 2010 came to the conclusion
that Finland had violated the right of freedom of expression by giving too much protection to the
right of private life under Article 8 of the Convention. In all five cases the Court was of the
opinion that the criminal conviction of journalists and editors-in-chief and the order to pay
damages for disclosing the identity of a public person’s partner amounted to an unacceptable
interference with the freedom of expression guaranteed by Article 10 of the European
Convention of Human Rights.
All applicants in all five cases were journalists, editors-in-chief and publishing companies that
were involved in the publishing in 1997 of a total of nine articles in a newspaper and in several
magazines concerning A., the National Conciliator at the time, and B., his female partner. The
articles focused primarily on the private and professional consequences for A. of an incident in
1996. This incident, including the revelation of B’.s identity, had earlier been reported upon in
the Finnish print media and on television. During that incident A. and B. entered A.’s home late
at night while A.’s wife was there and, as a result of an ensuing fight, B. was fined and A. was
sentenced to a conditional term in prison. A few weeks later, a newspaper and several magazines
revisited the incident and the court case, this time with more background information, interviews
or comments. All articles mentioned B. by name and in addition gave other details about her,
including her age, name of her workplace, her family relationships and her relationship with A.,
as well as her picture.
A. and B. requested that criminal investigations be conducted in respect of the journalists for
having written about the incident and the surrounding circumstances. The journalists and media
companies were ordered by the domestic courts to pay fines and damages for the invasion of B.’s
private life. The Finnish courts found in particular that, since B. was not a public figure, the fact
alone that she happened to be the girlfriend of a well-known person in society was not sufficient
to justify revealing her identity to the public. In addition, the fact that her identity had been
revealed previously in the media did not justify subsequent invasions of her private life. The
courts further held that even the mere dissemination of information about a person’s private life
was sufficient to cause them damage or suffering. Therefore, the absence of intent to hurt B. on
the part of the applicants was irrelevant. The Finnish courts concluded that the journalists and the
media had had no right to reveal facts relating to B.’s private life or to publish her picture as they
did.
The journalists, editors-in-chief and media companies complained under Article 10 of the
Convention about their convictions and the high amounts they had to pay in damages to B.
Having examined in earlier case law the domestic Criminal Code provision in question, the
European Court found its contents quite clear: the spreading of information, an insinuation or an
image depicting the private life of another person, which was conducive to causing suffering,
qualified as an invasion of privacy. In addition, even the exception stipulated in that provision concerning persons in a public office or function, in professional life, in a political activity or in
242
another comparable activity - was equally clearly worded. Even though there had been no precise
definition of private life in the law, if the journalists or the media had had any doubts about the
remit of that term, they should have either sought advice about its content or refrained from
disclosing B.’s identity. In addition, the applicants were professional journalists and therefore
could not claim not to have known the boundaries of the said provision, since the Finnish
Guidelines for Journalists and the practice of the Council for Mass Media, albeit not binding,
provided even stricter rules than the Criminal Code.
However, there had been no evidence, or indeed any allegation, of factual misrepresentation or
bad faith on the part of the applicants. Nor had there been any suggestion that they had obtained
information about B. by illicit means. While it had been clear that B. was not a public figure, she
was involved in an incident together with a well-known public figure with whom she had been in
a close relationship. Therefore, B. could have reasonably been seen as having entered the public
domain. In addition, the disclosure of B.’s identity was of clear public interest in view of A.’s
conduct and his ability to continue in his post as a high-level public servant. The incident was
widely publicised in the media, including in a programme broadcast nationwide on prime-time
television. Thus, the articles in question had not disclosed B.’s identity in this context for the first
time. Moreover, even if the events were presented in a somewhat colourful manner to boost sales
of the magazines, this was not in itself sufficient to justify a conviction for breach of privacy.
Finally, in view of the heavy financial sanctions imposed on the applicants, the European Court
noted that B. had already been paid a significant sum in damages by the television company for
having exposed her private life to the general public. Similar damages had been ordered to be
paid to her also in respect of other articles published in other magazines by the other applicants
listed above, which all stemmed from the same facts. Accordingly, in view of the severe
consequences for the applicants in relation to the circumstances of the cases, the European Court
held that there had been a violation of Article 10 of the Convention in all five cases.
Under Article 41 of the Convention (just satisfaction), the Court held that Finland was to pay the
applicants sums ranging between EUR 12,000 and EUR 39,000 for pecuniary damages, between
EUR 2,000 and EUR 5,000 for non-pecuniary damages and between EUR 3,000 and EUR 5,000
in respect of costs and expenses.
•
•
•
•
•
Flinkkilä and Others v. Finland, no. 25576/04, 6 April 2010.
Jokitaipale and Others v. Finland, no. 43349/05, 6 April 2010.
Iltalehti and Karhuvaara v. Finland, no. 6372/06, 6 April 2010.
Soila v. Finland, no. 6806/06, 6 April 2010.
Tuomela and Others v. Finland, no. 25711/04, 6 April 2010.
IRIS 2010-5/2
243
European Court of Human Rights: Renaud v. France
Dirk Voorhoof
The European Court of Human Rights recently delivered a judgment regarding defamation and
insult on the Internet. The Court was of the opinion that the sharp and polemical criticism of the
public figure in question was part of an ongoing emotional political debate and that the criminal
conviction for defamation and insult amounted to a violation of the freedom of expression
guaranteed by Article 10 of the European Convention of Human Rights.
The applicant in the case was Patrice Renaud. He is the founder of a local association (Comité de
défense du quartier sud de Sens) opposing a big construction project planned in the city of Sens.
To this end he also initiated a website, sharply criticising the mayor of Sens, who supported and
promoted the building project. In 2005, and on appeal in 2006, Renaud was convicted in criminal
proceedings for defamation and for publicly insulting a citizen discharging a public mandate, on
account of remarks concerning the mayor of Sens. On the website he had inter alia compared the
urban policy of the mayor to the policy of the former Romanian dictator Ceaucescu. Renaud was
convicted for defamation because of the specific allegation that the mayor was stimulating and
encouraging delinquency in the city centre in order to legitimise her policy of security and public
safety. Also the insinuation that the mayor was illegally putting public money in her own pockets
was considered defamatory, while the article on the association’s website in which Renaud had
written that the mayor was cynical, schizophrenic and a liar was considered to be a public insult.
Renaud was ordered to pay a fine of EUR 500 and civil damages to the mayor of EUR 1,000.
Relying on Article 10 (freedom of expression), Renaud complained of his conviction before the
European Court of Human Rights.
The European Court recognised that the applicant, being the chairman of the local association of
residents opposing the construction project and the webmaster of the Internet site of the
association, was participating in a public debate when criticising public officials and politicians.
The Court admitted that some of the phraseology used by Renaud was very polemic and virulent,
but stated that on the other hand a mayor must tolerate such kind of criticism as part of public
debate which is essential in a democracy. The Court was of the opinion that when a debate
relates to an emotive subject, such as the daily life of the local residents and their housing
facilities, politicians must show a special tolerance towards criticism and that they have to accept
“les débordements verbaux ou écrits” (free translation: “oral or written outbursts”). The Court
considered the allegations of Renaud to be value judgments with a sufficient factual basis and
came to the conclusion that the French judicial authorities had neglected the interests and
importance of freedom of expression in the matter at issue. The conviction of Renaud was thus
an interference with his right to freedom of expression which did not meet any pressing social
need, while at the same time such a conviction risks engendering a chilling effect on
participation in public debates of this kind. Therefore, the European Court found a violation of
244
•
Renaud v. France, no. 13290/07, 25 February 2010.
IRIS 2010-6/1
245
European Court of Human Rights: Jean-Marie Le Pen v. France
Dirk Voorhoof
A few years ago, Le Pen, the president of the French National Front party, was fined EUR
10,000 for incitement to discrimination, hatred and violence towards a group of people because
of their origin or their membership or non-membership of a specific ethnic group, nation, race or
religion, on account of statements he had made about Muslims in France in an interview with the
Le Monde daily newspaper. In the interview, Le Pen asserted, among other things, that “the day
there are no longer 5 million but 25 million Muslims in France, they will be in charge”.
He was subsequently sentenced to another fine after he commented on the initial fine, in the
following terms, in a weekly magazine: “When I tell people that when we have 25 million
Muslims in France we French will have to watch our step, they often reply: ‘But Mr Le Pen, that
is already the case now!’ - and they are right.” The French courts held that Le Pen’s freedom of
expression was no justification for statements that were an incitement to discrimination, hatred or
violence towards a group of people. The Court of Cassation dismissed an appeal lodged by Le
Pen in which he argued that his statements were not an explicit call for hatred or discrimination
and did not single out Muslims because of their religion and that the reference to Islam was
aimed at a political doctrine and not a religious faith.
In a decision of 20 April 2010 the European Court declared the application of Le Pen, which
relied on Article 10 ECHR (freedom of expression), manifestly ill-founded and hence
inadmissible.
The Court was of the opinion that the French authorities’ interference with Le Pen’s freedom of
expression, in the form of a criminal conviction, was prescribed by law (Arts. 23-24 of the
French Press Freedom Act - Loi sur la Liberté de la Presse) and pursued the legitimate aim of
protecting the reputation or rights of others. Again it was crucial to decide whether or not the
conviction of Le Pen was to be considered necessary in a democratic society, taking into account
the importance of freedom of expression in the context of political debate in a democratic
society. The Court reiterated that freedom of expression applies not only to “information” or
“ideas” that were favourably received, but also to those that offend, shock or disturb.
Furthermore, anyone who engages in a debate on a matter of public interest can resort to a degree
of exaggeration, or even provocation, provided that they respect the reputation and rights of
others. When the person concerned is an elected representative, like Le Pen, who represents his
voters, takes up their concerns and defends their interests, the Court has to exercise the strictest
supervision of this kind of interference with freedom of expression. Le Pen’s statements had
indeed been made in the context of a general debate on the problems linked to the settlement and
integration of immigrants in their host countries. Moreover, the varying importance of the
problems concerned, which could conceivably generate misunderstanding and incomprehension,
required that considerable latitude be left to the State in assessing the need for interference with a
person’s freedom of expression.
246
In this case, however, Le Pen’s comments had certainly presented the Muslim community as a
whole in a disturbing light likely to give rise to feelings of rejection and hostility. He had set the
French as a group against a community whose religious convictions were explicitly mentioned
and whose rapid growth was presented as an already latent threat to the dignity and security of
the French people. The reasons given by the domestic courts for convicting Le Pen had thus been
relevant and sufficient. In addition, the penalty imposed had not been disproportionate. The
Court recognised that the fine imposed on Le Pen was significant, but underlined the fact that Le
Pen under French law had risked a sentence of imprisonment. Therefore, the Court did not
consider the sanction to be disproportionate. On these grounds the Court found that the
interference with Le Pen’s enjoyment of his right to freedom of expression had been “necessary
in a democratic society”. LePen’s complaint was accordingly rejected.
Le Pen is confronted with a boomerang effect of the Court’s case law, as in an earlier case the
Grand Chamber of the European Court had found that defamatory and insulting statements about
Le Pen published in a book were not protected by Article 10 of the Convention, as these
statements were to be considered as a form of hate speech. The Grand Chamber in Lindon,
Otchakovsky-Laurens and July v. France had regard “to the nature of the remarks made, in
particular to the underlying intention to stigmatise the other side, and to the fact that their content
is such as to stir up violence and hatred, thus going beyond what is tolerable in political debate,
even in respect of a figure who occupies an extremist position in the political spectrum” (Lindon,
Otchakovsky-Laurens and July v. France, 22 October 2007, §57). It is precisely this argument,
that hate speech is beyond what is tolerable in political debate, which has now turned against Le
Pen.
•
Jean-Marie Le Pen v. France (dec.), no. 18788/09, 20 April 2010.
IRIS 2010-7/1
247
European Court of Human Rights: Akdaş v. Turkey
Dirk Voorhoof
The applicant in this case, Rahmi Akdaş is a publisher, residing in Bandirma, Turkey. In 1999 he
published the Turkish translation of the erotic novel “Les onze mille verges” by the French
writer Guillaume Apollinaire (“The Eleven Thousand Rods”, “On Bir Bin Kırbaç” in Turkish).
The novel contains graphic descriptions of scenes of sexual intercourse, including various
practices such as sadomasochism, vampirism and paedophilia. Akdaş was convicted under the
Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexual
desire among the population. The publisher argued that the book was a work of fiction, using
literary techniques such as exaggeration or metaphor and that the post face to the edition in
question was written by specialists in literary analysis. He added that the book did not contain
any violent overtones and that the humorous and exaggerated nature of the text was more likely
to extinguish sexual desire.
The criminal court of Istanbul ((Istanbul Asliye Ceza Mahkemesi) ordered the seizure and
destruction of all copies of the book and Akdaş was given a “severe” fine of EUR 1,100, a fine
that may be converted into days of imprisonment. In a final judgment of 11 March 2004, the
Court of Cassation quashed the part of the judgment concerning the order to destroy copies of the
book in view of a 2003 legislative amendment. It upheld the remainder of the judgment. Akdaş
paid the fine in full in November 2004.
Relying on Article 10, Akdaş complained about this conviction and about the seizure of the
book. Before the European Court it was not disputed that there had been an interference with
Akdaş’ freedom of expression, that the interference had been prescribed by law and that it had
pursued a legitimate aim, namely the protection of morals. The Court however found the
interference not necessary in a democratic society. The Court reiterated that those who promoted
artistic works also had “duties and responsibilities”, the scope of which depended on the
situation and the means used. As the requirements of morals vary from time to time and from
place to place, even within the same State, the national authorities are supposed to be in a better
position than the international judge to give an opinion on the exact content of those
requirements, as well as on the “necessity” of a “restriction” intended to satisfy them.
Nevertheless, the Court had regard in the present case to the fact that more then a century had
elapsed since the book had first been published in France (in 1907), to its publication in various
languages in a large number of countries and to the recognition it had gained through publication
in the prestigious “La Pléiade” series. Acknowledgment of the cultural, historical and religious
particularities of the Council of Europe’s member states could not go so far as to prevent public
access in a particular language, in this instance Turkish, to a work belonging to the European
literary heritage. Accordingly, the application of the legislation in force at the time of the events
had not been intended to satisfy a pressing social need. In addition, the heavy fine imposed and
the seizure of copies of the book had not been proportionate to the legitimate aim pursued and
248
had thus not been necessary in a democratic society, within the meaning of Article 10. For that
reason, the Court found a violation of Akdaş’ right to freedom of expression.
•
Akdaş v. Turkey, no. 41056/04, 16 February 2010.
IRIS 2010-8/1
249
European Court of Human Rights: Fatullayev v. Azerbaijan
Dirk Voorhoof
Having been convicted of defamation and threat of terrorism and while serving a prison
sentence, the founder and chief editor of the newspapers Gündəlik Azərbaycan and Realny
Azerbaijan, Mr. Fatullayev, applied successfully before the European Court of Human Rights
against a violation of his freedom of expression and right to a fair trial. The European Court
ordered the Azerbaijani authorities to release Fatullayev immediately.
In 2007 two sets of criminal proceedings were brought against Fatullayev in connection with two
articles published by him in Realny Azerbaijan. The first set of criminal proceedings related to
an article and to separate Internet postings. The statements made in the article and the postings
differed from the commonly accepted version of the events that took place at the town of
Khojaly during the war in Nagorno-Karabakh, according to which hundreds of Azerbaijani
civilians had been killed by the Armenian armed forces with the reported assistance of the
Russian army. Four Khojaly survivors and two former soldiers involved in the Khojaly battle
brought a criminal complaint against Fatullayev for defamation and for falsely accusing
Azerbaijani soldiers of having committed an especially grave crime. The courts upheld the
claims, convicted Fatullayev of defamation and sentenced him to imprisonment for a term of two
years and six months. Fatullayev was arrested in the courtroom and taken to a detention centre.
In addition, in civil proceedings brought against Fatullayev before the above-mentioned first set
of criminal proceedings, he was ordered to publish a retraction of his statements, an apology to
the refugees from Khojaly and the newspaper’s readers and to pay approximately EUR 8,500
personally, as well as another EUR 8,500 on behalf of his newspaper, in respect of nonpecuniary damages.
The second set of criminal proceedings related to an article entitled “The Aliyevs Go to War”. In
it Fatullayev expressed the view that, in order for President Ilham Aliyev to remain in power in
Azerbaijan, the Azerbaijani government had sought the support of the United States in exchange
for Azerbaijan’s support for US “aggression” against Iran. He speculated about a possible USIranian war in which Azerbaijan could also become involved and provided a long and detailed
list of strategic facilities in Azerbaijan that would be attacked by Iran if such a scenario
developed. He concluded that the Azerbaijani government should have maintained neutrality in
its relations with both the US and Iran and that it had not realised all the dangerous consequences
of the geopolitical game it was playing, like for example the possible deaths of Azeris in both
Azerbaijan and Iran. Before Fatullayev was formally charged with the offence of threat of
terrorism, the Prosecutor General made a statement to the press, noting that Fatullayev’s article
constituted a threat of terrorism. A short time later, Fatullayev was indeed found guilty as
charged and convicted of threat of terrorism. The total sentence imposed on him was
imprisonment for eight years and six months. In his defence speech at the trial and in his appeals
to the higher courts, Fatullayev complained that his presumption of innocence was breached as a
result of the Prosecutor General’s statement to the press and that his right to freedom of
expression as a journalist was violated. His complaints were summarily rejected.
250
Apart from finding breaches of Art. 6 § 1 (right to a fair trial, no impartial tribunal) and Art. 6 §
2 (breach of presumption of innocence) of the European Convention of Human Rights, the Court
found that the conviction of Fatullayev in both criminal cases amounted to a manifest violation
of Article 10 of the Convention.
With regard to the first criminal conviction, the Court acknowledged the very sensitive nature of
the issues discussed in Fatullayev’s article and that the consequences of the events in Khojaly
were a source of deep national grief. Thus, it was understandable that the statements made by
Fatullayev may have been considered shocking or disturbing by the public. However, the Court
recalled that freedom of information applies not only to information or ideas that were
favourably received, but also to those that offend, shock or disturb. In addition, it is an integral
part of freedom of expression to seek historical truth. Various matters related to the Khojaly
events still appear to be open to ongoing debate among historians and as such should have been a
matter of general interest in modern Azerbaijani society. It is essential in a democratic society
that a debate on the causes of acts of particular gravity which might amount to war crimes or
crimes against humanity should be able to take place freely. Further, the press plays the vital role
of a “public watchdog” in a democratic society. Although it ought not to overstep certain bounds,
in particular in respect of the reputation and rights of others, the duty of the press is to impart
information and ideas on political issues and on other matters of general interest. The Court
considered that the article had been written in a generally descriptive style with the aim of
informing Azerbaijani readers of the realities of day-to-day life in the area in question. The
public was entitled to receive information about what was happening in the territories over which
their country had lost control in the aftermath of the war. Fatullayev had attempted to convey, in
a seemingly unbiased manner, various ideas and views of both sides in the conflict and the article
had not contained any statements directly accusing the Azerbaijani military or specific
individuals of committing the massacre and deliberately killing their own civilians.
As regards the Internet postings, the Court accepted that, by making those statements without
relying on any relevant factual basis, the applicant might have failed to comply with the
journalistic duty to provide accurate and reliable information. Nevertheless, taking note of the
fact that he had been convicted of defamation, the Court found that those postings had not
undermined the dignity of the Khojaly victims and survivors in general and, more specifically,
the four private prosecutors who were Khojaly refugees. It therefore held that the domestic
courts had not given “relevant and sufficient” reasons for Fatullayev’s conviction of defamation.
In addition, the Court held that the imposition of a prison sentence for a press offence would be
compatible with journalists’ freedom of expression only in exceptional circumstances, notably
where other fundamental rights have been seriously impaired, as, for example, in cases of hate
speech or incitement to violence. As this had not been the case, there had been no justification
for the imposition of a prison sentence on Fatullayev. There had accordingly been a violation of
Article 10 of the Convention in respect of his first criminal conviction.
With regard to the second criminal conviction, the Court reached a similar conclusion. The
article “The Aliyevs Go to War” had focused on Azerbaijan’s specific role in the dynamics of
international politics relating to US-Iranian relations. As such, the publication had been part of a
251
political debate on a matter of general and public concern. The applicant had criticised the
Azerbaijani Government’s foreign and domestic political moves. At the same time, a number of
other media sources had also suggested during that period that, in the event of a war, Azerbaijan
was likely to be involved and speculated about possible specific Azerbaijani targets for Iranian
attacks. The fact that the applicant had published a list of specific possible targets in itself had
neither increased nor decreased the chances of a hypothetical Iranian attack. The applicant, as a
journalist and a private individual, had not been in a position to influence or exercise any degree
of control over any of the hypothetical events discussed in the article. Neither had Fatullayev
voiced any approval of any such possible attacks or argued in favour of them. It had been his
task, as a journalist, to impart information and ideas on the relevant political issues and express
opinions about possible future consequences of specific decisions taken by the Government.
Thus, the domestic courts’ finding that Fatullayev had threatened the State with terrorist acts had
been arbitrary. The Court considered that Fatullayev’s second criminal conviction and the
severity of the penalty imposed on him had constituted a grossly disproportionate restriction of
his freedom of expression. Further, the circumstances of the case had not justified the imposition
of a prison sentence on him. There had accordingly been a violation of Article 10 in respect of
Fatullayev’s second criminal conviction as well.
In application of Article 46 of the Convention (execution of the judgment), the Court noted that
Fatullayev was currently serving the sentence for the press offences in respect of which it had
found Azerbaijan in violation of the Convention. Having considered it unacceptable that the
applicant still remained imprisoned and the urgent need to put an end to the violations of Article
10, the Court held, by six votes to one, that Azerbaijan had to release the applicant immediately.
Under Article 41 (just satisfaction) of the Convention, the Court held that Azerbaijan is to pay
Fatullayev EUR 25,000 in respect of non-pecuniary damages and EUR 2,822 in respect of costs
and expenses.
•
Fatullayev v. Azerbaijan, no. 40984/07, 22 April 2010.
IRIS 2010-8/2
252
European Court of Human Rights: Andreescu v. Romania
Dirk Voorhoof
The applicant, Gabriel Andreescu, is a well-known human rights activist in Romania. He was
among those who campaigned for the introduction of Law No. 187, which gives all Romanian
citizens the right to inspect the personal files held on them by the Securitate (the former
Romanian intelligence service and secret police). The law also allows access to information of
public interest relating to persons in public office who may have been Securitate agents or
collaborators. A public agency, the Consiliul Naţional pentru Studierea Arhivelor Securităţii
(National Council for the Study of the Archives of the Securitate - CNSAS) is responsible for the
application of Law No. 187. In 2000, Andreescu submitted two requests to the CNSAS: one to
be allowed access to the intelligence file on him personally and the other seeking to ascertain
whether or not the members of the Synod of the Romanian Orthodox Church had collaborated
with the Securitate. He received no reply and organised a press conference at which he criticised
A.P., a member of the CNSAS, making reference to some of A.P.’s past activities. Andreescu’s
remarks on A.P.’s past received widespread media coverage.
A.P. made a criminal complaint against Andreescu accusing him of insult and defamation. After
being acquitted in first instance, Andreescu was ordered by the Bucharest County Court to pay a
criminal fine together with a high amount in compensation for non-pecuniary damage. The
appeal Court ruled that he had not succeeded in demonstrating the truth of his assertion that A.P.
had collaborated with the Securitate. Furthermore, a certificate issued by the CNSAS had
meanwhile stated that A.P. had not collaborated.
Relying on the European Convention of Human Rights and Fundamental Freedoms, Andreescu
lodged an application with the European Court of Human Rights concerning his conviction for
defamation. Although the interference by the Romanian authorities with Andreescu’s freedom of
expression had been prescribed by law and had pursued the legitimate aim of protecting A.P.’s
reputation, the European Court considered that the sanction was a violation of Article 10 of the
Convention. The Court held that Andreescu’s speech had been made in the specific context of a
nationwide debate on a particularly sensitive topic of general interest, namely the application of
the law concerning citizens’ access to the personal files kept on them by the Securitate, enacted
with the aim of unmasking that organisation’s nature as a political police force, and on the
subject of the ineffectiveness of the CNSAS’s activities. In that context, it had been legitimate to
discuss whether the members of that organisation satisfied the criteria required by law for
holding such a position. Andreescu’s remarks had been a mix of value judgments and factual
elements and he had especially alerted public opinion to the fact that he was voicing suspicions
rather than certainties. The Court noted that those suspicions had been supported by references to
A.P.’s conduct and to undisputed facts, such as his membership with the transcendental
meditation movement and the modus operandi of Securitate agents. According to the Court,
Andreescu had acted in good faith in an attempt to inform the public. As his remarks had been
made orally at a press conference, he had no opportunity of rephrasing, refining or withdrawing
them. The European Court was also of the opinion that the Romanian court, by convicting
253
Andreescu, had paid no attention to the context in which the remarks at the press conference had
been made. It had certainly not given “relevant and sufficient” reasons for convicting Andreescu.
The Court noted furthermore that the high level of damages - representing more than 15 times
the average salary in Romania at the relevant time - could be considered as a measure apt to deter
the media and opinion leaders from fulfilling their role of informing the public on matters of
general interest. As the interference with Andreescu’s freedom of expression had not been
justified by relevant and sufficient reasons, the Court held that there had been a violation of
Article 10. It also found a breach of Article 6 § 1 of the Convention (right to fair trial) due to
Andreescu’s conviction without evidence being taken from him in person, especially after he had
been acquitted at first instance. The Court held that Romania was to pay Andreescu EUR 3,500
in respect of pecuniary damage, EUR 5,000 for non-pecuniary damage and EUR 1,180 for costs
and expenses.
•
Andreescu v. Romania, no. 19452/02, 8 June 2010.
IRIS 2010-9/1
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European Court of Human Rights: Aksu v. Turkey
Dirk Voorhoof
In 2000 the Turkish Ministry of Culture published a book entitled “The Gypsies of Turkey”,
written by an associate professor. A few months later Mr. Mustafa Aksu, who is of Roma/Gypsy
origin, filed a petition with the Ministry of Culture on behalf of the Turkish Gypsy associations.
In his petition, he stated that in twenty-four pages of the book Gypsies were presented as being
engaged in illegitimate activities, living as “thieves, pickpockets, swindlers, robbers, usurers,
beggars, drug dealers, prostitutes and brothel keepers” and being polygamist and aggressive.
Gypsy women were presented as being unfaithful to their husbands and several other expressions
were humiliating and debasing to Gypsies. Claiming that the expressions constituted criminal
offences, Mr. Aksu requested that the sale of the book be stopped and all copies seized. During
the same period Mr. Aksu also took an action in regard to a dictionary entitled “Turkish
Dictionary for Pupils” which was financed by the Ministry of Culture. According to Mr. Aksu,
certain entries in the dictionary were insulting to, and discriminatory against, Gypsies. The
Ministry of Culture and later the judicial authorities in Ankara however rejected these complaints
and Mr. Aksu lodged two applications with the European Court of Human Rights. He submitted
that the remarks in the book and the expressions in the dictionary reflected clear anti-Roma
sentiment, that he had been discriminated against on account of his ethnic identity and that his
dignity had been harmed because of the numerous passages in the book which used
discriminatory and insulting language. He argued that that the refusal of the domestic courts to
award compensation demonstrated an obvious bias against the Roma and he therefore invoked
Articles 6 (fair trial) and 14 (non-discrimination) of the Convention. The Court considered,
however, that it was more appropriate to deal with the complaints under Article 14 of the
Convention in conjunction with Article 8 (right of privacy) of the Convention.
In its judgment of 27 July 2010 the Court began by referring to the vulnerable position of
Roma/Gypsies, the special needs of minorities and the obligation of the European states to
protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests
of the minorities themselves, but also to preserve a cultural diversity of value to the whole
community. The Court also emphasised that racial discrimination requires that the authorities
exert special vigilance and a vigorous reaction. It is for this reason that the authorities must use
all available means to combat racism, thereby reinforcing democracy's vision of a society in
which diversity is not perceived as a threat. Regarding the book, the Court accepted that the
passages and remarks cited by Mr. Aksu, when read on their own, appear to be discriminatory or
insulting. However, when the book is examined as a whole it is not possible to conclude that the
author acted with bad faith or had any intention of insulting the Roma community. The
conclusion to the book also clarified that it was an academic study that had conducted a
comparative analysis and focused on the history and socio-economic living conditions of the
Roma people in Turkey. The passages referred to by Mr. Aksu were not the author's own
comments, but examples of the perception of Roma people in Turkish society, while the author
sought to correct such prejudices and make it clear that the Roma people should be respected.
Bearing these considerations in mind and stressing its subsidiary role, which leaves a broad
255
margin of appreciation to the national authorities, the Court was not persuaded that the author of
the book had insulted the applicant's integrity or that the domestic authorities had failed to
protect the applicant's rights. Regarding the dictionary, the Court observed that the definitions
provided therein were prefaced with the comment that the terms were of a metaphorical nature.
Therefore it found no reason to depart from the domestic courts' findings that Mr. Aksu’s
integrity was not harmed and that he had not been subjected to discriminatory treatment because
of the expressions described in the dictionary. The Court concluded that in the present cases it
cannot be said that Mr. Aksu was discriminated against on account of his ethnic identity as a
Roma or that there was a failure on the part of the authorities to take the necessary measures to
secure respect for the applicant's private life.
Three dissenting judges, including the president of the second section of the Court, expressed
their concern about the approach of the majority, as various passages of the book convey a series
of highly discriminatory prejudices and stereotypes that should have given rise to serious
explanation by the author and are more forceful in tone than the work's concluding comments.
The dissenting judges also found that the dictionary contained seriously discriminatory
descriptions and that in a publication financed by the Ministry of Culture and intended for pupils,
the Turkish authorities had an obligation to take all measures to ensure respect for Roma identity
and to avoid any stigmatisation. They also referred to data and reports collected by the European
Union's Fundamental Rights Agency (FRA) showing that more vigilance is needed towards
Roma. These arguments and references however could not persuade the (slim) majority of the
Court, which accepted that the publication of the book and the dictionary were not to be
considered as violating the rights of Mr. Aksu under Articles 14 and 8 of the Convention.
•
Aksu v. Turkey, nos. 4149/04 and 41029/04, 27 July 2010.
on 15 March 2012.
IRIS 2010-10/1
256
European Court of Human Rights: Sanoma Uitgevers B.V. v. the Netherlands
Dirk Voorhoof
On 31 March 2009 the Chamber of the Third Section of the European Court of Human Rights
(ECtHR) delivered a highly controversial judgment in the case of Sanoma Uitgevers B.V. v. the
Netherlands. In a 4/3 decision, the Court was of the opinion that the order to hand over a CDROM with photographs in the possession of the editor-in-chief of a weekly magazine claiming
protection of journalistic sources did not amount to a violation of Article 10 of the European
Convention of Human Rights. The finding and motivation of the majority of the Chamber was
not only strongly disapproved of in the world of media and journalism, but was also firmly
criticised by the dissenting judges. Sanoma Uitgevers B.V. requested a referral to the Grand
Chamber, this request being supported by a large portion of the media, NGOs advocating media
freedom and professional organisations of journalists. On 14 September 2009, the panel of five
Judges decided to refer the case to the Grand Chamber in application of Article 43 of the
Convention. By referring the case to the Grand Chamber the panel accepted that the case raised a
serious question affecting the interpretation or application of Article 10 of the Convention and/or
concerned a serious issue of general importance.
On 14 September 2010, the 17 judges of the Grand Chamber unanimously reached the
conclusion that the order to hand over the CD-ROM to the public prosecutor was a violation of
the journalists’ rights to protect their sources. It noted that orders to disclose sources potentially
had a detrimental impact, not only on the source, whose identity might be revealed, but also on
the newspaper or publication against which the order was directed, whose reputation might be
negatively affected in the eyes of future potential sources by the disclosure, and on members of
the public, who had an interest in receiving information imparted through anonymous sources.
Protection of journalists’ sources is indeed to be considered “a cornerstone of freedom of the
press, without which sources may be deterred from assisting the press in informing the public on
matters of public interest. As a result the vital public-watchdog role of the press may be
undermined and the ability of the press to provide accurate and reliable information to the public
may be adversely affected”. In essence, the Grand Chamber was of the opinion that the right to
protect journalistic sources should be safeguarded by sufficient procedural guarantees, including
the guarantee of prior review by a judge or an independent and impartial decision-making body,
before the police or the public prosecutor have access to information capable of revealing such
sources. Although the public prosecutor, like any other public official, is bound by the
requirements of basic integrity, in terms of procedure he or she is a “party” defending interests
potentially incompatible with journalistic source protection and can hardly be seen as being
objective and impartial so as to make the necessary assessment of the various competing
interests. Since in the case of Sanoma Uitgevers B.V. v. the Netherlands an ex ante guarantee of
a review by a judge or independent and impartial body was not in existence, the Grand Chamber
was of the opinion that “the quality of the law was deficient in that there was no procedure
attended by adequate legal safeguards for the applicant company in order to enable an
independent assessment as to whether the interest of the criminal investigation overrode the
public interest in the protection of journalistic sources”. Emphasizing the importance of the
257
protection of journalistic sources for press freedom in a democratic society, the Grand Chamber
of the European Court found a violation of Article 10 of the Convention. The judgment implies
that member states of the Convention should build procedural safeguards into their national law
in terms of judicial review or other impartial assessment by an independent body based on clear
criteria of subsidiarity and proportionality and prior to any disclosure of information capable of
revealing the identity or the origin of journalists’ sources.
•
Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, 14 September 2010.
IRIS 2010-10/2
258
European Court of Human Rights: Gillberg v. Sweden
Dirk Voorhoof
The European Court of Human Rights has delivered a judgment in an interesting case with a
peculiar mix of issues related to freedom of expression, academic research, medical data, privacy
protection and access to official documents. The defendant state is Sweden, a country very
familiar with the principle and practice of access to official documents. The right of access to
official documents has a history of more than two hundred years in Sweden and is considered
one of the cornerstones of Swedish democracy. The case shows how access to official
documents, including research documents containing sensitive personal data, can be granted to
researchers, albeit under strict conditions. It furthermore demonstrates that Sweden applies
effective procedures to implement orders granting access to official documents: those who refuse
to grant access to official documents after a court decision has so ordered can be convicted on
the basis of criminal law. The case reflects the idea that progress in scientific knowledge would
be hindered unduly if the research methodology of a study or scientific data analysis and the
conclusions build on the data were not open to scrutiny, discussion and debate, albeit under strict
conditions of privacy protection regarding medical data.
In this case, a Swedish professor at the University of Gothenburg, Mr. Gillberg, has been
responsible for a long-term research project on hyperactivity of children and attention-deficit
disorders. Certain assurances were made to the children's parents and later to the young people
themselves concerning the confidentiality of the collected data. According to Mr. Gillberg, the
university's ethics committee had made it a precondition for the project that sensitive information
about the participants would be accessible only to himself and his staff and he had therefore
promised absolute confidentiality to the patients and their parents. The research papers, called
the Gothenburg study, were voluminous and consisted of a large number of records, test results,
interview replies, questionnaires and video and audio tapes. They contained a very large amount
of privacy-sensitive data about the children and their relatives.
Some years later, two other researchers not connected to the University of Gothenburg requested
access to the research material. One had no interest in the personal data as such but in the method
used and the evidence the researchers had for their conclusions, the other wanted access to the
material to keep up with current research. Both requests were refused by the University of
Gothenburg, but the two researchers appealed against the decisions. The Administrative Court of
Appeal found that the researchers should be granted access to the material, as they had shown a
legitimate interest and could be assumed to be well acquainted with the appropriate ways of
handling confidential data. It was also considered to be important to the neuropsychiatric debate
that the material in question be exposed to independent and critical examination. A list of
conditions was set for each of the two researchers, which included restrictions on the use of the
material and the prohibition of removing copies from the university premises. Notified by the
university's vice-chancellor that the two researchers were entitled to access by virtue of the
judgments, first Mr. Gillberg and later the university refused to give access to the researchers.
The university decisions were annulled however by two judgments of the Administrative Court
259
of Appeal. A few days later, the research material was destroyed by a few colleagues of Mr.
Gillberg.
The Swedish Parliamentary Ombudsman brought criminal proceedings against Mr. Gillberg,
who a short time later was convicted of misuse of office. Mr. Gillberg was given a suspended
sentence and a fine of the equivalent of EUR 4,000. The university's vice president and the
officials who had destroyed the research material were also convicted. Mr. Gillberg's conviction
was upheld by the Court of Appeal and leave to appeal to the Supreme Court was refused. A
short time later, Mr. Gillberg lodged an application with the Strasbourg Court of Human Rights.
He complained in particular that his criminal conviction breached his rights under Articles 8
(right of privacy, including personal reputation) and 10 (freedom of expression) of the
Convention. Mr. Gillberg also complained under Articles 6 (fair trial) and 13 (effective remedy)
of the Convention that in the civil proceedings concerning access to the research material he did
not have a standing before the Administrative Courts. Several times Mr. Gillberg’s requests for
relief for substantive defects to the Supreme Administrative Court were refused because he could
not be considered a party to the case. As Mr. Gillberg lodged his application before the Court
more than six months after these judgments, this part of the application had been submitted too
late and was rejected pursuant to Article 35 §§1 and 4 of the Convention. While on the face of it
the case raised important ethical issues involving the interests of the children participating in the
research, medical research in general and public access to information, the Court considered
itself to only be in a position to examine whether Mr. Gillberg's criminal conviction for refusing
to execute a court order granting access to official documents was compatible with the
Convention. The Court found that the conviction of Mr. Gillberg did not as such concern the
university's or the applicant's interest in protecting professional secrecy with clients or the
participants in the research. That part was settled by the Administrative Court of Appeal's
judgments. For reasons of inadmissibility of the application regarding the judgments of the
Administrative Courts, the European Court was prevented from examining any alleged violation
of the Convention by these judgments.
Regarding the remaining and hence crucial complaints under Article 8 and 10, Mr. Gillberg
emphasised that there had been a promise of confidentiality to the participants in the research, as
a precondition for carrying out his research and that the order to grant access to the research
material and his conviction for refusing to do so amounted to a violation of his right to private
life and his right to negative freedom of expression (the right to refuse to communicate).
The European Court left the question whether there had been an interference with Mr. Gillberg's
right to respect for his private life for the purpose of Article 8 open, because even assuming that
there had been such an interference, it found that there had been no violation of that provision.
According to the Court, Convention States have to ensure in their domestic legal systems that a
final binding judicial decision did not remain inoperative to the detriment of one party; the
execution of a judgment is an integral part of a trial. The Swedish State therefore had to react to
Mr. Gillberg's refusal to execute the judgments granting the two external researchers access to
the material. The Court noted Mr. Gillberg's argument that the conviction and sentence were
disproportionate to the aim of ensuring the protection of the rights and freedoms of others,
because the university's ethics committee had required an absolute promise of confidentiality as a
260
precondition for carrying out his research. However, the two permits by the committee he had
submitted to the Court did not constitute evidence of such a requirement. The Swedish courts had
moreover found that the assurances of confidentiality given to the participants in the study went
further than permitted by the Secrecy Act. As regards Mr. Gillberg's argument that the Swedish
courts should have taken into account as a mitigating circumstance the fact that he had attempted
to protect the privacy and integrity of the participants in the research, the European Court agreed
with the Swedish criminal courts that the question of whether the documents were to be released
had been settled in the proceedings before the administrative courts. Whether or not the
university considered that they were based on erroneous or insufficient grounds had no
significance for the validity of the administrative courts’ judgments. It had thus been incumbent
on the university administration to release the documents and Mr. Gillberg had intentionally
failed to comply with his obligations as a public official arising from the judgments. The Court
therefore did not find that his conviction or sentence was arbitrary or disproportionate to the
legitimate aims pursued. It concluded, by five votes to two, that there had been no violation of
With regard to the alleged violation of the right to freedom of expression under Article 10 of the
Convention, Mr. Gillberg invoked his "negative right" to remain silent. The Court accepted that
some professional groups indeed might have a legitimate interest in protecting professional
secrecy as regards clients or sources and it even observed that doctors, psychiatrists and
researchers may have a similar interest to that of journalists in protecting their sources. However,
Mr. Gillberg had been convicted for misuse of office for refusing to make documents available in
accordance with the instructions he received from the university administration after a Court
decision; he was thus part of the university that had to comply with the judgments of the
administrative courts. Moreover, his conviction did not as such concern his own or the
university's interest in protecting professional secrecy with clients or the participants in the
research. The Court unanimously concluded that there had been no violation of Article 10 of the
Convention.
The judgment of the European Court is certainly an eye-opener for many actors in countries of
the Council of Europe working in the domain of access to official or administrative documents,
academic research, the processing of sensitive personal data and data protection authorities. The
jurisprudence of the Swedish courts and of the European Court of Human Rights demonstrates
that confidentiality of data used for scientific research and protection of sensitive personal data is
to be balanced against the interests and guarantees related to transparency and access to
documents of interest for the research society or society as a whole. The concurring opinion of
Judge Ann Power, which is annexed to the judgment in the case of Gillberg v. Sweden,
elaborates the importance of this approach by emphasising that “the public has an obvious
interest in the findings and implications of research. Progress in scientific knowledge would be
hampered unduly if the methods and evidence used in research were not open to scrutiny,
discussion and debate. Thus, the requests for access, in my view, represented important matters
of public interest”, without however disregarding the principles and values of protection of
personal data.
•
Gillberg v. Sweden, no. 41723/06, 2 November 2010.
261
Editor’s Note: This case was referred to the Grand Chamber, which returned its judgment
on 3 April 2012.
IRIS 2011-1/1
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European Court of Human Rights: Nur Radyo Ve Televizyon Yayıncıliğı A.Ş. v. Turkey
Dirk Voorhoof
In 2002 the Turkish Broadcasting Authority (Radio ve Televizyon Üst Kurulu - the “RTÜK”)
revoked the broadcasting licence of Nur Radyo Ve Televizyon Yayıncıliğı A.Ş. (Nur Radyo), a
broadcasting company established in Istanbul at that time. In its motivation the RTÜK mainly
referred to the fact that, despite six temporary broadcasting bans for programmes that had
breached the constitutional principle of secularism or had incited hatred, Nur Radyo had
continued to broadcast religious programmes. The RTÜK referred in particular to a programme
“along the editorial line of Nur Radyo” that was broadcast on 19 November 2001 - during one of
the bans - from Bursa. That concerned a pirate broadcast, transmitted via satellite and terrestrial
links. RTÜK held Nur Radyo responsible for it and considered this new violation of the Turkish
law as justifying the revocation of its broadcasting licence. In addition, criminal proceedings
were initiated against the managers of Nur Radyo, in their personal capacity, on account of the
pirate broadcast of 19 November 2001. The managers were acquitted, as the criminal court found
that there was insufficient evidence of their presumed responsibility for the broadcasting of the
pirated programme. Nur Radyo subsequently sought the review and immediate suspension of the
RTÜK’s decision to revoke its broadcasting licence, but was unsuccessful.
Nur Radyo then lodged an application with the European Court of Human Rights, arguing in
particular that the revocation of its broadcasting licence had constituted an unjustified
interference with its right to freedom of expression, as guaranteed by Article 10 of the European
Convention on Human Rights.
The European Court noted that, in essence, the revocation of the licence was a reaction to a
pirate broadcast, via satellite and terrestrial links, using a frequency that had not been allocated
to the company and that came from Bursa, whereas Nur Radyo’s broadcasting centre was in
Istanbul. It further noted that the main reason why the RTÜK had found Nur Radyo to be
responsible for that programme was because it reflected its editorial line. However, the criminal
court had acquitted the managers of the company for lack of evidence of any responsibility for
the pirate broadcast in question. The European Court thus took the view that it had been arbitrary
to include the seventh programme in the aggregate assessment of the offences that led to the
revocation. It concluded that the additional penalty imposed on Nur Radyo on the basis of
offences for which other sanctions had already been imposed was not compatible with the
principle of the rule of law. The European Court accordingly found that the breach of the
freedom of expression of Nur Radyo had not been necessary in a democratic society and that
•
Nur Radyo Ve Televizyon Yayıncılığı A.Ş. v. Turkey (no. 2), no. 42284/05, 12 October 2010.
IRIS 2011-2/1
263
European Court of Human Rights: MGN Limited v. United Kingdom
Dirk Voorhoof
Ten years ago, in 2001, the newspaper Daily Mirror published an article on its front page under
the title: “Naomi: I am a drug addict”. Another longer article inside the newspaper elaborated on
top model Naomi Campbell’s addiction treatment, illustrated by photos taken secretly near the
Narcotics Anonymous centre she was attending at the time. As the newspaper continued to
publish more articles and new pictures related to her attendance at Narcotics Anonymous, Ms.
Campbell sued the Daily Mirror for breach of her privacy. At a final stage of the domestic
proceedings, the House of Lords found that the publication of the articles could have been
justified as a matter of public interest, as Ms Campbell had previously publicly denied drug use.
The publication of the pictures however, in combination with the articles, had breached her right
to the respect for her private life. Apart from a modest award of damages of 3500 GBP, the Daily
Mirror’s publishing group, MGN, was ordered to pay Ms. Campbell’s legal costs, including the
“success fees” agreed between Ms Campbell and her lawyers. The total amount of the legal costs
was more than 1 million GBP.
Relying on Article 10 of the European Convention MGN lodged an application with the
European Court of Human Rights, complaining that the finding by the British courts that it had
breached Ms Campbell’s privacy disregarded the right to freedom of expression. MGN also
argued that the requirement to pay disproportionately high success fees amounted to a violation
of Article 10 of the Convention. This part of the application was supported by third parties, such
as the Open Society Justice Initiative, the Media Legal Defence Initiative, Index on Censorship
and Human Rights Watch, all referring to the chilling effect of high costs in defamation
proceedings in the United Kingdom on NGOs and small media organisations.
Regarding the breach of privacy, the European Court recalled that a balance had to be struck
between the public interest in the publication of the articles and the photographs of Ms Campbell
and the need to protect her private life. By six votes to one the Court held that there was no
breach of Article 10. The Court agreed with the reasoning of the House of Lords that the public
interest had already been satisfied by the publication of the articles, while adding that the
photographs was a disproportionate breach of her right to respect for her private life. Therefore,
the interference in the right to freedom of expression of the Daily Mirror was considered
necessary in a democratic society in order to protect the rights of Ms Campbell.
However, the order to pay the success fees of up to more than 365.000 GBP was considered by
the European Court as a disproportionate interference in the right to freedom of expression,
having regard to the legitimate aims sought to be achieved. The Court took into consideration
that the system of recoverable success fees may have a chilling effect on media reporting and
hence on freedom of expression. The Court unanimously found a violation of Article 10 of the
Convention.
•
MGN Limited v. the United Kingdom, no. 39401/04, 18 January 2011.
264
IRIS 2011-3/1
265
European Court of Human Rights: Yleisradio Oy a.o. v. Finland
Dirk Voorhoof
In 2004 Yleisradio Oy broadcast a current affairs programme focusing on some legal aspects of
incest cases in the context of child custody disputes. Genuine cases were used as examples. In
one case, A. appeared undisguised and using his own first name. He was introduced as a 55-year
old driver from Helsinki and it was further announced that A. had been convicted and sentenced
to imprisonment for sexual abuse of his two children, X. and Y., their gender and current age
being mentioned. The judgment concerning A.’s conviction for sexual offences had been
declared confidential by the Court of Appeal and the case file had also been declared
confidential. However, some information included in that file was revealed during the
programme and some details about the court proceedings and the conduct of the children’s
mother were mentioned. Z., the children’s mother, filed a criminal complaint and the public
prosecutor charged A., the editor and the editor-in-chief on grounds of dissemination of
information violating personal privacy and aggravated defamation.
The Supreme Court concluded that it was probable that several persons could have connected A.
with X. and Y. on the basis of the information given in the programme and that information had
been disseminated violating the personal privacy of X., Y. and Z., although the disclosure of this
confidential information had not been based on the need to inform the public. On the contrary, it
had been necessary to conceal that information. A. and the two journalists were fined and
ordered to pay damages and costs. The broadcasting company and its two journalists complained
under Article 10 of the European Convention that the Supreme Court’s judgment violated their
right to freedom of expression.
Although the European Court was of the opinion that the programme clearly involved an element
of general importance and that in such situations any restrictions on freedom of expression
should be imposed with particular caution, it noted that the two under-age victims of sexual
offences and their mother were private persons and that sensitive information about their lives
was revealed on air nationwide. The European Court did not find arbitrary the Finnish Supreme
Court’s finding that the relevant criminal provision did not, in general, require that the victims be
recognised de facto and that, in this particular case, it was probable that several people, even if a
very limited group, could have connected the victims to the person interviewed. The Court was
satisfied that the reasons relied on by the Supreme Court were relevant and sufficient to show
that the interference complained of was “necessary in a democratic society” and that a fair
balance between the competing interests was struck. Unanimously, the Court rejected the
application by Yleisradio Yo and its editor and editor-in-chief as being manifestly ill-founded.
For these reasons the Court unanimously declared the application inadmissible. Hence Article 10
of the Convention was not found to be violated in this case.
•
Yleisradio Oy a.o. v. Finland (dec.), no. 30881/09, 12 June 2009.
IRIS 2011-4/1
266
European Court of Human Rights: Otegi Mondragon v. Spain
Dirk Voorhoof
In a judgment of 15 March the European Court of Human Rights decided that an elected
representative’s conviction for causing serious insult to the King of Spain was contrary to his
freedom of expression. The case concerns the criminal conviction of a politician of a Basque
separatist political party, Mr. Arnaldo Otegi Mondragon, following comments made to the press
during an official visit by the King to the province of Biscay. During a press conference Otegi
Mondragon, as spokesperson for his parliamentary group, Sozialista Abertzaleak, stated in reply
to a journalist’s question that the visit of the King to Biscay was a “genuine political disgrace”.
He said that the King, as “supreme head of the Guardia Civil (police) and of the Spanish armed
forces” was the person in command of those who had tortured those detained in a recent police
operation against a local newspaper, amongst them the main editors of the newspaper. Otegi
Mondragon called the King “he who protects torture and imposes his monarchical regime on our
people through torture and violence”. Otegi Mondragon was convicted for insult of the King on
the basis of Article 490 §3 of the Criminal Code and sentenced to one year’s imprisonment and
suspension of his right to vote during that period. The Spanish courts categorised the impugned
comments as value judgments and not statements of fact, affecting the inner core of the King’s
dignity, independently of the context in which they had been made. The European Court of
Human Rights, however, considers this criminal conviction a violation of Article 10 of the
Convention, as Otegi Mondragon’s remarks had not been a gratuitous personal attack against the
King nor did they concern his private life or his personal honour. While the Court acknowledged
that Otegi Mondragon’s language could be considered provocative, it reiterated that it was
permitted, in the context of a public debate of general interest, to have recourse to a degree of
exaggeration, or even provocation. The King being the symbol of the State cannot be shielded
from legitimate criticism, as this would amount to an over-protection of Heads of State in a
monarchical system. The phrases used by Otegi Mondragon, addressed to journalists during a
press conference, concerned solely the King’s institutional responsibility as Head of State and a
symbol of the State apparatus and of the forces which, according to Otegi Mondragon, had
tortured the editors of a local newspaper. The comments in issue had been made in a public and
political context that was outside the “essential core of individual dignity” of the King. The
European Court further emphasised the particular severity of the sentence. While the
determination of sentences was in principle a matter for the national courts, a prison sentence
imposed for an offence committed in the area of political discussion was compatible with
freedom of expression only in extreme cases, such as hate speech or incitement to violence.
Nothing in Otegi Mondragon’s case justified such a sentence, which inevitably had a dissuasive
effect. Thus, even supposing that the reasons relied upon by the Spanish courts could be accepted
as relevant, they were not sufficient to demonstrate that the interference complained of had been
“necessary in a democratic society”. The applicant’s conviction and sentence were thus
disproportionate to the aim pursued, in violation of Article 10 of the Convention.
•
Otegi Mondragon v. Spain, no. 2034/07, ECHR 2011.
267
IRIS 2011-5/3
268
European Court of Human Rights: RTBF v Belgium
Dirk Voorhoof
In a judgment of 29 March 2011 the European Court found a violation of Article 10 of the
European Convention on Human Rights in the case Radio-télévision belge de la communauté
française (RTBF) v Belgium. The case concerned an interim injunction ordered by an urgentapplications judge against the RTBF, preventing the broadcasting of a programme on medical
errors and patients’ rights. The injunction prohibited the broadcasting of the programme until a
final court decision in a dispute between a doctor named in the programme and the RTBF. As the
injunction constituted an interference by the Belgian judicial authorities with the RTBF’s
freedom of expression, the European Court in the first place had to ascertain whether that
interference had a legal basis. Whilst Article 10 does not prohibit prior restraints on
broadcasting, such restraints require a particularly strict legal framework, ensuring both tight
control over the scope of bans and effective judicial review to prevent any abuse. As news is a
perishable commodity, delaying its publication, even for a short period, might deprive it of all its
interest. In ascertaining whether the interference at issue had a legal basis, the Court observed
that the Belgian Constitution authorised the punishment of offences committed in the exercise of
freedom of expression only once they had been committed and not before. Although some
provisions of the Belgian Judicial Code permitted in general terms the intervention of the urgentapplications judge, there was a discrepancy in the case law as to the possibility of preventive
intervention in freedom of expression cases by that judge. The Belgian law was thus not clear
and there was no constant jurisprudence that could have enabled the RTBF to foresee, to a
reasonable degree, the possible consequences of the broadcasting of the programme in question.
The European Court observed that, without precise and specific regulation of preventive
restrictions on freedom of expression, many individuals fearing attacks on them in television
programmes - announced in advance - might apply to the urgent-applications judge, who would
choose different solutions to their cases and that this would not be conducive to preserving the
essence of the freedom of imparting information. Although the European Court considers a
different treatment between audiovisual and print media not unacceptable as such, e.g., regarding
the licensing of radio and television, it did not agree with the Belgian Court of Cassation
decision to refuse to apply the essential constitutional safeguard against censorship of
broadcasting. According to the European Court, this differentiation appeared artificial, while
there was no clear legal framework to allow prior restraint as a form of censorship on
broadcasting. The Court was of the opinion that the legislative framework, together with the
case-law of the Belgian courts, did not fulfil the condition of forseeability required by the
Convention. As the interference complained of could not be considered to be prescribed by law,
there had thus been a violation of Article 10 of the Convention. The judgment contains an
important message to all member states of the European Convention on Human Rights: prior
restraints require a particularly strict, precise and specific legal framework, ensuring both tight
control over the scope of bans both in print media and in audiovisual media services, combined
with an effective judicial review to prevent any abuse by the domestic authorities.
•
RTBF v. Belgium, no. 50084/06, ECHR 2011.
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IRIS 2011-6/1
270
European Court of Human Rights: Mosley v. the United Kingdom
Dirk Voorhoof
In the case Mosley v. the United Kingdom the European Court of Human Rights decided that the
right of privacy guaranteed by Article 8 of the European Convention on Human Rights does not
require the media to give prior notice of intended publications to those who feature in them. The
applicant in this case is Max Rufus Mosley, the former president of the International Automobile
Federation. In 2008, the Sunday newspaper News of the World published on its front page an
article entitled “F1 Boss Has Sick Nazi Orgy with 5 Hookers”, while several pages inside the
newspaper were also devoted to the story and included still photographs taken from video
footage secretly recorded by one of the participants in the sexual activities. An edited extract of
the video, in addition to still images, were also published on the newspaper’s website and
reproduced elsewhere on the Internet. Mr Mosley brought legal proceedings against the
newspaper claiming damages for breach of confidence and invasion of privacy. In addition, he
sought an injunction to restrain the News of the World from making available on its website the
edited video footage. The High Court refused to grant the injunction because the material was no
longer private, as it had been published extensively in print and on the Internet. In subsequent
privacy proceedings the High Court found that there was no public interest and thus no
justification for publishing the litigious article and accompanying images, which had breached
Mr. Mosley’s right to privacy. The court ruled that News of the World had to pay to Mr. Mosley
60,000 GBP in damages.
Relying on Article 8 (right to private life) and Article 13 (right to an effective remedy) of the
European Convention, Mr. Mosley complained that, despite the monetary compensation awarded
to him by the courts, he remained a victim of a breach of his privacy as a result of the absence of
a legal duty on the part of the News of the World to notify him in advance of their intention to
publish material concerning him, thus giving him the opportunity to ask a court for an interim
injunction and prevent the material’s publication. The European Court found indeed that the
publications in question had resulted in a flagrant and unjustified invasion of Mr. Mosley’s
private life. The question which remained to be answered was whether a legally binding prenotification rule was required. The Court recalled that states enjoy a certain margin of
appreciation in respect of the measures they put in place to protect people’s right to private life.
In the United Kingdom, the right to private life is protected with a number of measures: there is a
system of self-regulation of the press; people can claim damages in civil court proceedings; and,
if individuals become aware of an intended publication touching upon their private life, they can
seek an interim injunction preventing publication of the material. As a pre-notification
requirement would inevitably also affect political reporting and serious journalism, the Court
stressed that such a measure would require careful scrutiny. In addition, a parliamentary inquiry
on privacy issues had been recently held in the UK and the ensuing report had rejected the need
for a pre-notification requirement. The Court further noted that Mr. Mosley had not referred to a
single jurisdiction in which a pre-notification requirement as such existed nor had he indicated
any international legal texts requiring states to adopt such a requirement. Furthermore, as any
pre-notification obligation would have to allow for an exception if the public interest were at
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stake, a newspaper would have to be able to opt not to notify an individual if it believed that it
could subsequently defend its decision on the basis of the public interest in the information
published. The Court observed in that regard that a narrowly defined public interest exception
would increase the chilling effect of any pre-notification duty. Anyway, a newspaper could
choose, under a system in which a pre-notification requirement was applied, to run the risk of
declining to notify, preferring instead to pay a subsequent fine. The Court emphasised that any
pre-notification requirement would only be as strong as the sanctions imposed for failing to
observe it. But at the same time the Court emphasised that particular care had to be taken when
examining constraints which might operate as a form of censorship prior to publication.
Although punitive fines and criminal sanctions could be effective in encouraging prenotification, they would have a chilling effect on journalism, including political and investigative
reporting, both of which attract a high level of protection under the Convention. Such as scheme
would therefore run the risk of being incompatible with the Convention’s requirements of
freedom of expression, guaranteed by Article 10 of the Convention. Having regard to the chilling
effect to which a pre-notification requirement risked giving rise, to the doubts about its
effectiveness and to the wide margin of appreciation afforded to the UK in this area, the Court
concluded that Article 8 did not require a legally binding pre-notification requirement.
•
Mosley v. the United Kingdom, no. 48009/08, 10 May 2011.
IRIS 2011-7/1
272
European Court of Human Rights: Sigma Radio Television Ltd. v. Cyprus
Dirk Voorhoof
This case concerns a complaint by a broadcasting company regarding a number of decisions by
the Cyprus Radio and Television Authority (CRTA) imposing fines on the company for
violations of legislation concerning radio and television programmes in its broadcasts and the
alleged unfairness of the related domestic proceedings. The breaches found by the CRTA
concerned advertisements for children’s toys; the duration of advertising breaks; the placement
of sponsors’ names during news programmes; product placement in a comedy series; news
programmes that lacked objectivity or contained material unsuitable for minors or were
disrespectful of crime victims and their relatives; films, series and trailers that contained
offensive remarks and inappropriate language or included scenes of violence unsuitable for
children; and, in one particular case, racist and discriminatory remarks in an entertainment series.
Sigma RTV alleged substantially that it had been denied a fair hearing before an independent and
impartial tribunal, invoking Article 6 of the Convention. In this connection it complained about
the proceedings before the CRTA and the judicial review proceedings before the Supreme Court.
Sigma RTV’s grievance as to the proceedings before the CRTA concentrated on the multiplicity
of its functions in prosecuting, investigating, trying and deciding cases and imposing sanctions.
In addition, Sigma RTV complained that the members and staff of the CRTA had a direct and
personal interest in imposing fines, as the amounts thus collected were deposited in the CRTA’s
Fund, from which their salaries and/or remuneration were paid.
The European Court notes that a number of uncontested procedural guarantees were available to
Sigma RTV in the proceedings before the CRTA: the company was given details of the probable
violation or the complaint made against it and the reasoned decisions were arrived at after a
hearing had been held, while Sigma RTV was able to make written submissions and/or oral
submissions during the hearing. Furthermore, it was open to Sigma RTV to make a wide range of
complaints in the context of the judicial review proceedings before the CRTA. Despite the
existence of these safeguards, the combination of the different functions of the CRTA and, in
particular, the fact that all fines are deposited in its own fund for its own use, gives rise, in the
Court’s view, to legitimate concerns that the CRTA lacks the necessary structural impartiality to
comply with the requirements of Article 6. Nonetheless, the Court reiterates that even where an
adjudicatory body, including an administrative one as in the present case, which determines
disputes over “civil rights and obligations” does not comply with Article 6 §1 in some respect,
no violation of the Convention can be found if the proceedings before that body are “subject to
subsequent control by a judicial body that has ‘full’ jurisdiction and does provide the guarantees
of Article 6 §1”. Although the Supreme Court could not substitute its own decision for that of the
CRTA and its jurisdiction over the facts was limited, it could have annulled the decisions on a
number of grounds, including if the decision had been reached on the basis of a misconception of
fact or law, if there had been no proper enquiry or a lack of due reasoning, or on procedural
grounds. The European Court notes that indeed the Supreme Court examined all the above
issues, point by point, without refusing to deal with any of them and that the Supreme Court gave
clear reasons for the dismissal of the Sigma RTV’s points. The Court came to the conclusion that
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Sigma RTV’s allegations as to shortcomings in the proceedings before the CRTA, including
those concerning objective partiality and the breach of the principles of natural justice, were
subject to review by the Supreme Court and that the scope of the review of the Supreme Court in
the judicial review proceedings in the present case was sufficient to comply with Article 6 of the
Convention.
The Court also dismissed Sigma RTV’s complaints regarding the alleged violation of Article 10
of the Convention as all decisions by the CRTA were in accordance with Art. 10 §2, the
sanctions and fines being prescribed by law, being proportionate and being pertinently justified
on the basis of legitimate aims. These aims, in general, included the protection of consumers and
children from unethical advertising practices, the protection of children from broadcasts
containing violence or any other material likely to impair their physical, mental or moral
development, the importance of ensuring that viewers were informed of the true content of the
broadcasts by the use of appropriate acoustic and visual warnings, the protection of pluralism of
information, the need for a fair and accurate presentation of facts and events and the protection
of the reputation, honour, good name and privacy of persons involved in or affected by the
broadcast. The Court found therefore, that the interference with Sigma RTV’s exercise of their
right to freedom of expression in these cases can reasonably be regarded as having been
necessary in a democratic society for the protection of the rights of others. The Court accordingly
declared inadmissible, as manifestly ill-founded, Sigma RTV’s complaints under Article 10 in
respect of the CRTA’s decisions. One complaint however received a more thorough analysis on
the merits: the complaint regarding the racist and discriminatory content of a fictional series. The
Court emphasises that it is particularly conscious of the vital importance of combating racial and
gender discrimination in all its forms and manifestations and that the CRTA could not be said in
the circumstances to have overstepped its margin of appreciation in view of the profound
analysis at the national level, even though the remarks had been made in the context of a fictional
entertainment series. Lastly, as to the proportionality of the impugned measure, the Court found,
bearing in mind the amount of the fine and the fact that the CRTA, when imposing the fine, took
into account the repeated violations by the applicant in other episodes of the same series, that the
fine imposed (approximately EUR 3,500) was proportionate to the aim pursued. Accordingly,
there has been no violation of Article 10 of the Convention.
Finally the Court also dismissed the complaint regarding the alleged discrimination against
Sigma RTV, operating as a private broadcaster under stricter rules, restrictions and monitoring
than the national public broadcasting company in Cyprus, CyBC. The European Court was of the
opinion that, given the differences in the legal status and the applicable legal frameworks and the
different objectives of private stations and the CyBC in the Cypriot broadcasting system, it
cannot be said that they are in a comparable position for the purposes of Article 14 of the
Convention. The Court found, therefore, that the present case does not indicate discrimination
contrary to Article 14 of the Convention.
•
Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, 21 July 2011.
IRIS 2011-8/3
274
European Court of Human Rights: Sipoş v. Romania
Dirk Voorhoof
In a remarkable judgment the European Court of Human Rights has come to the conclusion that
Romania breached the right of privacy of a journalist when the Romanian courts acquitted the
director and the coordinator of the press office of the Romanian Television Company (SRTV) in
criminal defamation and insult proceedings.
At the heart of the case lies a press release published by the management of the Romanian State
TV channel, after removing the applicant, Ms. Maria Sipoş, from a programme that she produced
and presented on the National State channel România 1. Following her replacement as a
presenter, Ms. Sipoş made a number of statements to the press alleging that SRTV was engaged
in censorship. The broadcaster responded in turn by issuing a press release, explaining that Ms.
Sipoş had been replaced due to audience numbers. The press release, quoted by six national
newspapers, also made reference to Ms. Sipoş’ emotional state due to family problems, it
questioned her discernment, referred to allegedly antagonistic relations between her and her
colleagues and suggested she was a victim of political manipulation. Ms. Sipoş claimed that
SRTV’s press release had infringed her right to her reputation, and she brought criminal
proceedings before the Bucharest District Court against the channel’s director and the
coordinator of the SRTV’s press office, accusing both of insults and defamation. The Bucharest
County Court acknowledged that the press release contained defamatory assertions about Ms.
Sipoş, but having regard to the fact that the defendants had not intended to insult or defame her
and in view of their good faith, it dismissed Ms. Sipoş’ claims.
Before the European Court of Human Rights Ms. Sipoş complained that the Romanian
authorities had failed in their obligation, under Article 8 of the Convention, to protect her right to
respect for her reputation and private life against the assertions contained in the press release
issued by the SRTV. Referring to the positive obligations a State has in securing respect for
private life, even in the sphere of relations between private individuals, the European Court
clarified that it had to determine whether Romania had struck a fair balance between, on the one
hand, the protection of Ms. Sipoş’ right to her reputation and to respect for her private life, and
on the other, the freedom of expression (Article 10) of those who had issued the impugned press
release. For that purpose the Court examined the content of the press release and found, in
particular, that the assertions presenting Ms. Sipoş as a victim of political manipulation were
devoid of any proven factual basis, since there was no indication that she had acted under the
influence of any particular vested interest. As regards the remarks about her emotional state, the
Court noted that they were based on elements of her private life whose disclosure did not appear
necessary. As to the assessment about Ms. Sipoş’ discernment, it could not be regarded as
providing an indispensable contribution to the position of the SRTV, as expressed through the
press release, since it was based on elements of the applicant’s private life known to the SRTV’s
management. The Court noted that, given the chilling effect of criminal sanctions, a civil action
would have been more appropriate, but it concluded nonetheless that the statements had crossed
the acceptable limits and that the Romanian courts had failed to strike a fair balance between
275
protecting the right to reputation and freedom of expression. Thus, there had been a violation of
Article 8, and Ms. Sipoş was awarded EUR 3,000 in damages.
One dissenting judge, Judge Myer, drew attention to a particular issue in this case. Although the
Third Chamber of the Court recognized that criminal sanctions have a chilling effect on speech
and that it would have been more appropriate to initiate the civil proceedings available to the
applicant, nevertheless the majority of the European Court found that the criminal sanction of the
director and press officer of the SRTV was necessary in a democratic society in order to protect
Ms. Sipoş’ right to her reputation and private life, an approach that contrasts with Resolution
1577(2007) of the Parliamentary Assembly of the Council of Europe urging the
decriminalization of defamation and insult.
•
Sipoş v. Romania, no. 26125/04, 3 May 2011.
IRIS 2011-9/1
276
European Court of Human Rights : Karttunen v Finland
Dirk Voorhoof
The European Court of Human Rights has delivered a decision regarding the criminalization of
the possession, reproduction and public display of child pornography, freely downloaded from
the Internet, and its compatibility with freedom of (artistic) expression. The issue before the
European Court was whether the conviction of an artist for including child pornography in a
work exhibited at an art exhibition violated the right to freedom of expression under Article 10 of
the European Convention of Human Rights.
Ms. Ulla Annikki Karttunen is a Finnish artist who exhibited her work “the Virgin-Whore
Church” in an art gallery in Helsinki in 2008. The work included hundreds of photographs of
teenage girls or otherwise very young women in sexual poses and acts. The pictures had been
downloaded from free Internet pages. One day after the opening of the exhibition, the police
seized the pictures and the exhibition was closed down. The police also seized Karttunen’s
computer and the public prosecutor pressed charges against the artist. The domestic courts
convicted the artist of possessing and distributing sexually obscene pictures depicting children
under the age of 18, also referring to the finding that some of the pictures were of an extremely
violent or degrading nature. Even though the artist’s intention had not been to commit a criminal
act but, on the contrary, to criticise easy Internet access to child pornography, the possession and
distribution of sexually obscene pictures depicting children were still to be considered criminal
acts according to Chapter 17, sections 18/19 of the Finnish Penal Code. Taking into account that
Karttunen had intended to provoke general discussion about child pornography and that the
crimes were minor and excusable, the Finnish court did not impose any sanctions on the artist.
Instead, all the pictures were ordered to be confiscated.
Karttunen complained in Strasbourg under Article 10 of the Convention that her right as an artist
to freedom of expression had been violated. She argued that she had incorporated the
pornographic pictures into her work in an attempt to encourage discussion and raise awareness of
how widespread and easily accessible child pornography was. The European Court noted that the
artist’s conviction, even if no sanction was imposed on her, constituted an interference with her
right to freedom of expression, as guaranteed by Article 10 Â§ 1 of the Convention. As the
interference was prescribed by law and pursued the legitimate aim of protecting morals as well
as the reputation or rights of others, within the meaning of Article 10 Â§ 2, it still was to be
determined whether the interference in the artist’s freedom of artistic expression was necessary
in a democratic society. The European Court considered that the domestic courts had adequately
balanced the artist’s freedom of expression with the countervailing interests. The Court referred
to the finding by the Finnish courts that the possession and public display of child pornography
was still subject to criminal liability, the criminalization of child pornography and the artist’s
conviction being mainly based on the need to protect children against sexual abuse, as well as
violation of their privacy and on moral considerations. The Court also noted that the domestic
courts had acknowledged the artist’s good intentions, by not imposing any sanctions. Having
regard as well to the aspect of “morals” involved and to the margin of appreciation afforded to
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the state in this area, the Court considered that the interference was proportionate to the
legitimate aim pursued. Thus, the Court concluded that “it does not follow from the applicant’s
claim that her conviction did not, in all the circumstances of the case, respond to a genuine social
need”. The Court declared the artist’s application manifestly ill-founded and therefore
inadmissible.
•
Karttunen v Finland (dec.), no. 1685/10, 10 May 2011.
IRIS 2011-10/3
278
European Court of Human Rights : Avram and other v Moldova
Dirk Voorhoof
In a judgment of 5 July 2011 the European Court of Human Rights found that five women
broadcast on national television in a sauna romp with police officers should have received higher
financial compensation for the breach of their privacy. This judgment became final on 5 October
2011.
The applicants in this case are five young women, all friends, who complained about the
broadcasting on Moldovan national television of an intimate video footage showing them in a
sauna with five men, four of whom were police officers. At the time, three of the applicants were
journalists, the first two for the investigative newspaper Accente. The women claimed that they
first had contact with the police officers when the editor in chief of Accente was arrested on
charges of corruption and that, from that point on, the officers provided them with material for
their articles. One of the applicants had even become romantically involved with one of the
officers. The footage was used in a programme on national television about corruption in
journalism and notably in the newspaper Accente. It showed the applicants, apparently
intoxicated, in a sauna in their underwear, with two of them kissing and touching one of the men
and one of them performing an erotic dance. The faces of the men were covered in the video,
whereas those of the applicants were not. The video was paused from time to time in order to
allow the women to be recognized more easily. The applicants alleged in particular that the video
had been secretly filmed by the police officers and used to try to blackmail them into not
publishing an article on illegalities at the Moldovan Ministry of Internal Affairs. Indeed the
video was send to the National Television Service only after the first two applicants had had the
article published in their newspaper.
The five applicants brought civil proceedings both against the Ministry of Internal Affairs, for
arranging the secret filming and giving documents of a private nature to national television, and
against National Television, for then broadcasting the images of a private nature. They requested
compensation for a breach of their right to respect for their private and family life under Article 8
of the European Convention. In August 2008 the Supreme Court of Justice in Moldova gave a
final ruling in which it dismissed the complaint against the Ministry of Internal Affairs
concerning the secret filming on account of lack of evidence. It held, however, that the Ministry
was responsible for handing documents of a private nature concerning Ms. Avram over to the
National Television Service and that National Television was then responsible for the
broadcasting of the sauna scene, in breach of Article 8 of the Convention. The Supreme Court
ordered the National Television Service to pay each applicant EUR 214 and the Ministry of
Internal Affairs a further EUR 214 to Ms. Avram, these being the maximum amounts allowed
under Article 7/1 of the Moldovan old Civil Code by way of compensation for damage to a
person’s honour or dignity.
Relying on Article 8 of the Convention (right to respect for private and family life), the
applicants complained that the domestic authorities had failed to properly investigate the secret
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filming in the sauna and that the compensation awarded to them for the broadcasting was not
proportionate to the severity of the breach of their right to respect for their private lives. In its
judgment, the European Court reiterates that the notion of “private life” within the meaning of
Article 8 of the Convention is a broad concept which includes, inter alia, the right to establish
and develop relationships with other people. It encompasses elements such as sexual life, the
right to live privately and away from publicity and unwanted attention. The Court sees no reason
to depart from the conclusion of the national courts, which acknowledged that there had been
interference with the applicants’ right to privacy in respect of both the secret filming and the
broadcasting of the video on television and the defamation. The Court furthermore made clear
that a State that awards compensation for a breach of a Convention right cannot content itself
with the fact that the amount granted represents the maximum under domestic law. The Court
found that the amounts awarded by the Supreme Court of Justice to the applicants were too low
to be considered proportionate with the gravity of interference with their right to respect for their
private lives, taking into account that the broadcasting of the video on national television had
dramatically affected the private, family and social lives of the applicants. There has,
accordingly, been a breach of Article 8 of the Convention. In terms of compensation for nonpecuniary damage the Court awarded sums between EUR 4,000 and 6,000 to each of the
applicants. The Court also awarded them jointly with a sum of EUR 1,500 for costs and
expenses.
•
Avram and Others v. Moldova, no. 41588/05, 5 July 2011.
IRIS 2012-1/1
280
European Court of Human Rights: Standard Verlags GmbH v Austria
Dirk Voorhoof
In its first judgment of 2012 related to (journalistic) freedom of expression, the European Court
of Human Rights dealt with an interesting application of the right of the media to report on
criminal cases in an early stage of investigation. The judgment also focuses in a peculiar way on
the notion of a “public figure”. The case concerns an article published by the Austrian newspaper
Der Standard, reporting on the enormous speculation losses incurred by a regional bank, Hypo
Alpe-Adria. The article reported on the criminal investigation into embezzlement that had been
opened by the public prosecutor in respect of the senior management of the bank. It identified
some of the persons involved, including Mr Rauscher, the head of the bank’s treasury. Mr
Rauscher brought proceedings against the newspaper’s company for disclosing his identity in
that article and, as a result, he was awarded EUR 5,000 in compensation. In its judgment the
Vienna Court of Appeal found that Mr Rauscher’s interest in the protection of his identity and
the presumption of innocence outweighed the newspaper’s interest in disclosing his name.
The Strasbourg Court however, after being requested to evaluate the interference in Der
Standard’s freedom of expression under the scope of Article 10 of the Convention, came to
another conclusion in balancing the newspaper’s right to freedom of expression against Mr
Rauscher’s right to protection of his identity. The European Court agreed with the finding by the
Austrian courts that Mr Rauscher, as a senior employee of the bank in issue, was not a “public
figure” and that the fact that his father had been a politician did not make him a public figure.
The Strasbourg Court also agreed with the assessment that Mr Rauscher had not entered the
public arena. However, the Court observed that the question of whether or not a person, whose
interests have been violated by reporting in the media, is a public figure is only one element
among others to be taken into account in answering the question whether the newspaper was
entitled to disclose the name of that person. Another important factor that the Court has
frequently stressed when it comes to weighing conflicting interests under Article 10 (freedom of
expression) on the one hand and Article 8 (right to privacy) on the other hand is the contribution
made by articles or photos in the press to a debate of general interest. The European Court
emphasised that the article in Der Standard dealt with the fact that politics and banking are
intertwined and reported on the opening of an investigation by the public prosecutor. In this
connection the Court reiterated that there is little scope under Article 10 Â§2 of the Convention
for restrictions on political speech or on debates on questions of public interest. It accepted the
Vienna Court of Appeal’s finding that the disclosure of a suspect’s identity may be particularly
problematic at the early stage of criminal proceedings. However, as the article at issue was not a
typical example of court reporting, but focused mainly on the political dimension of the banking
scandal at hand, revealing the names of some persons involved, including senior managers of the
bank, it was legitimate. The Court considered that, apart from reporting the fact that the public
prosecutor had opened an investigation into the bank’s senior management on suspicion of
embezzlement, the impugned litigious article did not deal with the conduct or contents of the
investigation as such. Instead the focus was on the extent to which politics and banking are
intertwined and on the political and economic responsibility for the bank’s enormous losses. In
281
such a context, names, persons and personal relationships are clearly of considerable importance
and it is difficult to see how the newspaper could have reported on these issues in a meaningful
manner without mentioning the names of all those involved, including Mr Rauscher. The Court
therefore considered that the domestic courts had overstepped the narrow margin of appreciation
afforded to them with regard to restrictions on debates on subjects of public interest. It follows
that the interference with the newspaper’s right to freedom of expression was not “necessary in a
democratic society”. Consequently, the Court concluded that there had been a violation of
Article 10 of the Convention. The Court awarded Standard Verlags GmbH EUR 7,600 for
pecuniary damages and EUR 4,500 for costs and expenses.
•
Standard Verlags GmbH v. Austria (no. 3), no. 34702/07, 10 January 2012.
IRIS 2012-2/2
282
European Court of Human Rights: Axel Springer AG v. Germany
Dirk Voorhoof
In two judgments of 7 February 2012 the Grand Chamber of the European Court of Human
Rights has balanced the right to freedom of expression by the media (Article 10 of the
Convention) with celebrities’ personality rights and their right of privacy (Article. 8 of the
Convention). The overall conclusion is that media coverage including pictures of celebrities is
acceptable when the media reporting concerns matters of public interest or at least to some
degree contributes to a debate of general interest. In the case of Von Hannover v. Germany (no.
2), the Court held unanimously that the publication of a picture of Princess Caroline of Monaco
illustrating an article about the Principality of Monaco and the refusal by the German Courts to
grant an injunction against it, did not amount to a violation of the right of privacy of the Princess.
The European Court is of the opinion that the Princess, irrespective of the question to what
extent she assumed official functions, is to be regarded as a public person. The article with the
picture at issue did not solely serve entertainment purposes and there was nothing to indicate that
the photo had been taken surreptitiously or by equivalent secret means such as to render its
publication illegal.
The judgment in the case Axel Springer AG v. Germany concerns the media coverage by the
newspaper Bild of the arrest and conviction of a famous TV-actor (X), found in possession of
drugs. X had played the part of Police Superintendent as the hero of a popular television series
on German TV, reaching between 3,000,000 and 4,700,000 viewers per episode. X brought
injunction proceedings against the publishing company of Bild because of the publication of two
articles, one reporting that X was arrested for possession of cocaine and another, a year later, that
he was convicted of the same offence. The German courts granted X’s request to prohibit any
further publication of the two articles and the photos illustrating these articles. Although these
injunctions were prescribed by law and pursued the legitimate aim of protecting the reputation of
X, the Grand Chamber of the European Court is of the opinion that the interference by the
German judicial authorities cannot be considered necessary in a democratic society. The Court
noted that the arrest and conviction of X concerned public judicial facts of which the public has
an interest in being informed. It is also emphasized that there was a close link between the
popularity of the actor in question and his character as a TV-actor, playing a police
superintendent, whose mission was law enforcement and crime prevention. This element
increased the public’s interest in being informed of X’s arrest for a criminal offence. The Court
also observed that X was arrested in public, in a tent at the beer festival in Munich. According to
the Court there were no sufficiently strong grounds for believing that Bild should preserve X’s
anonymity, having regard to the nature of the offence committed by X, the degree to which X
was well-known to the public, the circumstances of his arrest and the veracity of the information
in question. Furthermore the articles in Bild did not reveal details about X’s private life, but
mainly concerned the circumstances of and events following his arrest. They contained no
disparaging expression or unsubstantiated allegation. The fact that the first article contained
certain expressions which, to all intents and purposes, were designed to attract the public’s
attention cannot in itself raise an issue, according to the Court. Finally the Court finds that the
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injunction against the articles in Bild was capable of having a chilling effect on the applicant
company. In conclusion, the grounds advanced by the German authorities, although relevant, are
not sufficient to establish that the interference complained of by Springer Verlag AG was
necessary in a democratic society. Despite the margin of appreciation enjoyed by Contracting
States, the Court considers that there is no reasonable relationship of proportionality between, on
the one hand, the restrictions imposed by the national courts on Bild’s right to freedom of
expression and, on the other hand, the legitimate aim pursued. Accordingly, there has been a
violation of Article 10 of the Convention. Germany is ordered to pay EUR 50,000 in respect of
pecuniary damages and costs and expenses to Springer Verlag AG.
Five judges dissented with the finding of a violation of Article 10, mainly arguing that the
European Court should have respected a broader margin of appreciation for the German courts.
According to the five dissenting judges it is not the task of the Strasbourg Court to act as a
“fourth instance to repeat anew assessments duly performed by the domestic courts”. The
majority of 12 judges of the Grand Chamber however found that the interference in Bild’s
reporting by the German authorities amounted to a violation of Article 10 of the European
Convention, especially taking into account 6 criteria of the media content: the contribution to a
debate of general interest, the fact that the reporting concerned a public figure, the subject of the
report, the prior conduct of the person concerned, the method of obtaining the information and its
veracity, the content, form and consequences of the media content and the severity of the
sanction imposed. In essence the European Court found that the injunctions against Bild were
capable of having a chilling effect on the applicant’s freedom of expression.
•
•
Axel Springer AG v. Germany [GC], no. 39954/08, 7 February 2012.
Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, ECHR 2012.
IRIS 2012-3/1
284
European Court of Human Rights: Tuşalp v. Turkey
Dirk Voorhoof
On 21 February 2012, the European Court of Human Rights has once again found an unjustified
interference with the right to freedom of expression and press freedom by the Turkish
authorities. The peculiarity this time is that the Prime Minister, Mr Recep Tayyip Erdoğan,
himself lies at the centre of the violation of the European Convention by the Strasbourg Court. In
the case Tuşalp v. Turkey the European Court was asked to consider whether two defamation
actions taken by the Prime Minister of Turkey against a journalist for protection of his
personality rights were compatible with Article 10 of the European Convention. The applicant
was Erbil Tuşalp, a journalist and author of several books. He criticised in two articles, published
in the newspaper Birgün, the alleged illegal conduct and corruption of high-ranking politicians,
also including the Prime Minister in his commentary. The Prime Minister brought civil actions
for compensation against the journalist and the publishing company before the Turkish courts on
the ground that certain remarks in the articles constituted an attack on his personality rights. The
Turkish courts considered that the remarks made in the articles indeed went beyond the limits of
acceptable criticism and belittled the Prime Minister in the public and the political arena.
According to the domestic courts, Tuşalp had published allegations of a kind that one cannot
make about a Prime Minister, including the second article that had alleged that the Prime
Minister had psychological problems and that he had a hostile attitude suggesting he was
mentally ill. The journalist and publishing company were ordered to pay TRY 10,000 (EUR
4,300) in compensation.
The European Court of Human Rights however disagreed with the findings of the Turkish courts.
The Court considered that the articles concerned comments and views on current events. Both
articles focused on very important matters in a democratic society which the public had an
interest in being informed about and fell within the scope of political debate. The Court also
considered the balance between Tuşalp’s interest in conveying his views, and the Prime
Minister’s interests in having his reputation protected and being protected against personal insult.
The European Court considers that, even assuming that the language and expressions used in the
two articles in question were provocative and inelegant and certain expressions could
legitimately be classed as offensive, they were, however, mostly value judgments. These value
judgments were based on particular facts, events or incidents which were already known to the
general public, as some of the quotations compiled by Tuşalp for the purposes of the domestic
proceedings demonstrate. They therefore had sufficient factual basis. As to the form of the
expressions, the Court observes that the author chose to convey his strong criticisms, coloured by
his own political opinions and perceptions, by using a satirical style. According to the Court
offensive language may fall outside the protection of freedom of expression if it amounts to
wanton denigration, for example where the sole intent of the offensive statement is to insult. But
the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as
it may well serve merely stylistic purposes. Style constitutes part of communication as a form of
expression and is as such protected together with the content of the expression. However, in the
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instant case, the domestic courts, in their examination of the case, omitted to set the impugned
remarks within the context and the form in which they were expressed.
The European Court is of the opinion that various strong remarks contained in the articles in
question and particularly those highlighted by the domestic courts could not be construed as a
gratuitous personal attack against the Prime Minister. In addition, the Court observes that there is
nothing in the case file to indicate that the applicant’s articles have affected the Prime Minister’s
political career or his professional and private life. The Court comes to the conclusion that the
domestic courts failed to establish convincingly any pressing social need for putting the Prime
Minister’s personality rights above the journalist’s rights and the general interest in promoting
the freedom of the press where issues of public interest are concerned. The Court therefore
considers that in making their decisions the Turkish courts overstepped their margin of
appreciation and that they have interfered with the journalist’s freedom of expression in a
disproportionate way. The amount of compensation which Tuşalp was ordered to pay, together
with the publishing company, was significant and such sums could deter others from criticising
public officials and limit the free flow of information and ideas. The Court concluded that the
Turkish courts had failed to establish any “pressing social need” for putting the Prime Minister’s
personality rights above the right to freedom of expression and the general interest in promoting
press freedom. There had thus been a violation of Article 10.
•
Tuşalp v. Turkey, nos. 32131/08 and 41617/08, 21 February 2012.
IRIS 2012-4/1
286
European Court of Human Rights: Aksu v. Turkey (Grand Chamber)
Dirk Voorhoof
For the facts of this case we refer to IRIS 2010-10/1 in which the Court’s Chamber judgment of
27 July 2010 was reported. In essence Mr. Mustafa Aksu, who is of Roma/Gypsy origin,
complained in Strasbourg that two publications financed or supported by the Ministry of Culture
in Turkey, had offended him in his Roma identity, under Article 14 (the anti-discrimination
provision) in conjunction with Article 8 (right to privacy). The action of Mr. Aksu was directed
against a book entitled “The Gypsies of Turkey” and a dictionary entitled “Turkish Dictionary
for Pupils”, both containing insulting, denigrating or stereotyping statements about Roma. In its
judgment of 27 July 2010 the European Court was not persuaded that the author of the book
insulted Mr. Aksu's integrity or that the domestic authorities had failed to protect his rights.
Regarding the dictionary, the Court observed that the definitions provided therein were prefaced
with the comment that the terms were of a metaphorical nature. The European Court found no
reason to depart from the domestic courts' findings that Mr. Aksu’s integrity was not harmed and
that he had not been subjected to discriminatory treatment because of the expressions described
in the dictionary. The Court, with the smallest majority, concluded that it could not be said that
Mr. Aksu was discriminated against on account of his ethnic identity as a Roma or that there was
a failure on the part of the Turkish authorities to take the necessary measures to secure respect
for Mr. Aksu’ s private life (see also IRIS 2010-10/1).
The Grand Chamber has now confirmed that Mr. Aksu’ s rights under the Convention have not
been violated. The Grand Chamber decided not to examine the complaint under the antidiscrimination provision. According to the Court “the case does not concern a difference in
treatment, and in particular ethnic discrimination, as the applicant has not succeeded in
producing prima facie evidence that the impugned publications had a discriminatory intent or
effect. The case is therefore not comparable to other applications previously lodged by members
of the Roma community”. The main issue in the present case is whether the impugned
publications, which allegedly contained racial insults, constituted interference with Mr. Aksu’ s
right to respect for his private life and, if so, whether this interference was compatible with the
said right. The Court therefore examined the case under Article 8 of the Convention only,
clarifying that the notion of personal autonomy is an important principle and that it can embrace
multiple aspects of the person’s physical and social identity. The Court accepts that an
individual’s ethnic identity must be regarded as another such element and that in particular, any
negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the
group’s sense of identity and the feelings of self-worth and self-confidence of members of the
group. It is in this sense that it can be seen as affecting the private life of members of the group.
However, in applying the protection of privacy under Article 8 of the Convention, the Court
emphasises that due regard should be given to the requirements of freedom of expression under
With regard to the book the Court explains that the Turkish courts attached importance to the fact
it had been written by an academic and that it was to be considered as an academic work. It is
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therefore consistent with the Court’s case-law to submit to careful scrutiny any restrictions on the
freedom of academics to carry out research and to publish their findings. The Court explains why
it is satisfied that in balancing the conflicting fundamental rights under Articles 8 and 10 of the
Convention, the Turkish courts made an assessment based on the principles resulting from the
Court’s well-established case law. Although no violation of Article 8 was found, the Court
nonetheless reiterated that the vulnerable position of Roma/Gypsies means that special
consideration should be given to their needs and their different lifestyle, both in the relevant
regulatory framework and in reaching decisions in particular cases. Therefore it is clear that in a
dictionary aimed at pupils, more diligence is required when giving the definitions of expressions
which are part of daily language but which might be construed as humiliating or insulting. In the
Court’s view, it would have been preferable to label such expressions as “pejorative” or
“insulting”, rather than merely stating that they were metaphorical. According to the Court,
States should promote critical thinking among pupils and equip them with the necessary skills to
become aware of and react to stereotypes or intolerant elements contained in the material they
use. The Court also emphasises that the authorities and Government should pursue their efforts
to combat negative stereotyping of the Roma. Finally the Court considers that the domestic
authorities did not overstep their margin of appreciation and did not disregard their positive
obligation to secure to Mr. Aksu effective respect for his private life. By 16 votes to one the
Grand Chamber holds that there hasn’t been a violation of Article 8 the Convention.
•
Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, ECHR 2012.
IRIS 2012-5/1
288
European Court of Human Rights : Vejdeland and others v. Sweden
Dirk Voorhoof
In a judgment of 9 February 2012 the European Court has ruled that Sweden did not violate the
right to freedom of expression in a case about â€˜hate speech’. The criminal conviction of the
applicants for distributing leaflets that contained anti-gay offensive statements was considered
necessary in a democratic society in order to protect the rights of homosexuals. It is the first time
that the Court applies the principles relating to freedom of expression and â€˜hate speech’ in the
context of sexual orientation.
In 2004 Mr Vejdeland, together with three other persons, went to an upper secondary school and
distributed approximately a hundred leaflets by leaving them in or on the pupils’ lockers. The
episode ended when the school’s principal intervened and made them leave the premises. The
originator of the leaflets was an organisation called National Youth. Vejdeland and his
companions were charged with agitation against a national or ethnic group (hets mot folkgrupp)
because of the offensive and denigrating statements toward homosexuals. Vejdeland disputed
that the text in the leaflets expressed hatred against homosexuals and he claimed that, in any
event, he had not intended to express contempt for homosexuals as a group; the purpose had
been to start a debate about the lack of objectivity in the education dispensed in Swedish schools.
Vejdeland and his companions were convicted by the District Court, but the Court of Appeal
rejected the charges on the ground that a conviction would amount to a violation of their right to
freedom of expression as guaranteed by the European Convention on Human Rights. The
Swedish Supreme Court finally overruled this judgment and convicted Vejdeland and the others
of agitation against a national or ethnic group. According to the Supreme Court the leaflets were
formulated in a way that was offensive and disparaging for homosexuals as a group and in
violation of the duty under Article 10 to avoid as far as possible statements that are
unwarrantably offensive to others thus constituting an assault on their rights, and without
contributing to any form of public debate which could help to further mutual understanding. The
purpose of the relevant sections in the leaflets could have been achieved without statements that
were offensive to homosexuals as a group. Vejdeland and his companions complained that the
judgment of the Supreme Court constituted a violation of their freedom of expression as
protected by Article 10 of the Convention.
The European Court accepted Vejdeland’s argument that the leaflets had been distributed with
the aim of starting a debate about the lack of objectivity of education in Swedish schools. But the
Court also agrees with the Swedish Supreme Court that even if this is an acceptable purpose,
regard must be paid to the wording of the leaflets. The Strasbourg Court observes that, according
to the leaflets, homosexuality was “a deviant sexual proclivity” that had “a morally destructive
effect on the substance of society”. The leaflets also alleged that homosexuality was one of the
main reasons why HIV and AIDS had gained a foothold and that the “homosexual lobby” tried to
play down paedophilia. In the Court’s opinion, although these statements did not directly
recommend individuals to commit hateful acts, they are serious and prejudicial allegations. The
Court reiterates that inciting to hatred does not necessarily entail a call for an act of violence, or
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other criminal acts. Indeed, attacks on persons committed by insulting, holding up to ridicule or
slandering specific groups of the population can be sufficient for the authorities to favour
combating racist speech in the face of freedom of expression exercised in an irresponsible
manner. In this regard, the Court stresses that discrimination based on sexual orientation is as
serious as discrimination based on “race, origin or colour”. Furthermore, the leaflets were left in
the lockers of young people who were at an impressionable and sensitive age and who had no
possibility to decline to accept them. The European Court refers to the findings by the Supreme
Court stressing that along with freedoms and rights people also have obligations and that one
such obligation is, as far as possible, to avoid statements that are unwarrantably offensive to
others, constituting an assault on their rights. The statements in the leaflets are considered
unnecessarily offensive and the applicants had left the leaflets in or on the pupils’ lockers,
thereby imposing them on the pupils. The European Court also notes that the applicants were not
sentenced to imprisonment, although the crime of which they were convicted carries a penalty of
up to two years’ imprisonment. Instead, three of them were given suspended sentences combined
with fines ranging from approximately EUR 200 to EUR 2,000, and the fourth applicant was
sentenced to probation. The Court does not find these penalties excessive in the circumstances.
The conviction of Vejdeland and the other applicants and the sentences imposed on them were
not considered disproportionate to the legitimate aim pursued and the reasons given by the
Swedish Supreme Court in justification of those measures were relevant and sufficient. The
interference with the applicants’ exercise of their right to freedom of expression could therefore
reasonably be regarded by the Swedish authorities as necessary in a democratic society for the
protection of the reputation and rights of others. These considerations were sufficient to enable
the Court to conclude that the application did not reveal a violation of Article 10 of the
Convention. Although the Court unanimously came to this conclusion, the concurring opinions
of five of the seven judges indicate that there was still some hesitation on the argumentation why
there was no violation of Article 10 and why the distribution and content of the leaflets amounted
to a form of â€˜hate speech’ against homosexuals.
•
•
Vejdeland v. Sweden, no. 1813/07, 9 February 2012.
Fact sheet produced by the European Court of Human Rights on Hate Speech, February
2012 [Editor’s note: link to updated version of fact sheet (July 2013)].
IRIS 2012-5/2
290
European Court of Human Rights: Gillberg v. Sweden (Grand Chamber)
Dirk Voorhoof
The Grand Chamber of the European Court has, more firmly than in its Chamber judgment of 2
November 2010 (see IRIS 2011/1-1), confirmed that a Swedish professor, Mr. Gillberg, could
not rely on his right to privacy under Article 8, nor on his (negative) right to freedom of
expression and information under Article 10 of the Convention to justify his refusal to give
access to a set of research materials belonging to Gothenburg University, on request of two other
researchers, K and E. Mr. Gillberg was convicted of misuse of office. He was given a suspended
sentence and a fine of the equivalent of EUR 4,000. In Strasbourg Mr. Gillberg complained that
his criminal conviction breached his rights under Articles 8 and 10.
As to the alleged breach of Article 8 of the Convention, the Court is of the opinion that the
conviction of Mr. Gillberg did not affect his right to privacy. The Court confirmed that Article 8
cannot be relied on in order to complain of a loss of reputation that is the foreseeable
consequence of one’s own actions such as, for example, the commission of a criminal offence.
As there was no indication that the impugned conviction had any repercussions on Mr. Gillberg’s
professional activities that went beyond the foreseeable consequences of the criminal offence of
which he was convicted, his rights under Article 8 had not been affected.
Regarding the alleged breach of Article 10, the Court clarified that in the present case the
applicant was not prevented from receiving and imparting information or in any other way
prevented from exercising his “positive” right to freedom of expression. Indeed Mr. Gillberg
argued that he had a “negative” right to refuse to make the disputed research materials available,
and that consequently his conviction was in violation of Article 10 of the Convention. The Court
is of the opinion that the finding that Mr. Gillberg would have a right under Article 10 of the
Convention to refuse to give access to the research materials in this case would not only run
counter to the property rights of the University of Gothenburg, but “it would also impinge on K’s
and E’s rights under Article 10, as granted by the Administrative Court of Appeal, to receive
information in the form of access to the public documents concerned”.
The Court also rejected the claim by Mr. Gillberg that he could invoke a right similar to that of
journalists in having their sources protected under Article 10 of the Convention. The Court is of
the opinion that Mr. Gillberg’s refusal to comply with the judgments of the Administrative Court
of Appeal, by denying K and E access to the research materials, hindered the free exchange of
opinions and ideas on the research in question, notably on the evidence and methods used by the
researchers in reaching their conclusions, which constituted the main subject of K’s and E’s
interest. In these circumstances the Court found that Mr. Gillberg’s situation could not be
compared to that of journalists protecting their sources. On these grounds the Grand Chamber
reached the conclusion that the rights of Mr. Gillberg under Articles 8 and 10 of the Convention
had not been affected and that these rights did not apply in the instant case.
•
Gillberg v. Sweden [GC], no. 41723/06, 3 April 2012.
291
IRIS 2012-6/1
292
European Court of Human Rights: Frăsilă and Ciocîrlan v. Romania
Dirk Voorhoof
The case concerns the ineffectiveness of the enforcement of a court decision giving journalists
the right of access to the premises of a local radio station where they worked (Radio M Plus).
Access to their work premises had been obstructed by the representatives of the broadcasting
company Tele M, situated in the same building. In a decision of 6 December 2002 the NeamÅ£
County Court ordered Tele M to grant Frăsilă and Ciocîrlan access to the Radio M Plus editorial
office and held that the obstruction of their access by representatives of the Tele M company
constituted an unlawful act that might be detrimental to the activities of the radio station of
which they were the manager and editor respectively. Several attempts to have the court decision
enforced failed, including a criminal complaint against the representatives of Tele M. Relying on
Article 10 Frăsilă and Ms Ciocîrlan complained in Strasbourg that the authorities had failed to
assist them in securing the enforcement of a final judicial decision ordering third parties to grant
them access to the editorial office at the radio station where they worked as journalists.
The Court emphasized that genuine, effective exercise of freedom of expression is a precondition
of a functioning democracy. The right to freedom of expression does not depend merely on the
State’s duty not to interfere but could require positive measures of protection, even in the sphere
of relations between individuals. In determining whether the State had a positive obligation in
that regard, the Court reiterated that it took into account the nature of the freedom of expression
at stake, its capacity to contribute to public debate, the nature and scope of the restrictions
imposed on freedom of expression, the existence of alternative means of exercising this freedom
and the weight of the competing rights of others or the general public.
Although in this case the authorities did not bear any direct responsibility for the restriction on
the applicants’ freedom of expression, it was still necessary to determine whether or not the
authorities had complied with any positive obligation they might have had to protect freedom of
expression from interference by others. The Court observed that the case concerned the practice
of a profession that played a crucial “watchdog” role in a democratic society, and that an
essential element of freedom of expression, namely the means of exercising it, had therefore
been at stake for Frăsilă and Ciocîrlan. The Court reiterated that the State was the ultimate
guarantor of pluralism and that this role became even more crucial where the independence of
the media was at risk as a result of outside pressure from those holding political and economic
power, as it had been reported. As to whether the State had complied with its positive obligation,
the Court observed that Frăsilă and Ciocîrlan had taken sufficient steps on their own initiative
and made the necessary efforts to secure the enforcement of the court decision, but that the main
legal means available to them for achieving this had proved inadequate and ineffective.
Accordingly, the Court found that by refraining from taking the necessary measures to assist
Frăsilă and Ciocîrlan in the enforcement of the court decision, the national authorities had
deprived the provisions of Article 10 of the Convention of all useful effect. There had therefore
been a violation of the right to freedom of expression.
293
•
Frăsilă and Ciocîrlan v. Romania, no. 25329/03, 10 May 2012.
IRIS 2012-7/1
294
European Court of Human Rights: Case Centro Europa 7 S.r.l. and Di Stefano v. Italy
Dirk Voorhoof
In 2009 Centro Europa 7 complained in Strasbourg that for a period of almost ten years the
Italian Government had not allocated it any frequencies for analogue terrestrial television
broadcasting, while the company had already obtained a licence for TV broadcasting in 1999.
The company submitted that the failure to apply the broadcasting law of 1997, the refusal to
enforce the Constitutional Court’s judgments imposing the effective allocation of frequencies for
new private TV stations and the duopoly existing in the Italian television market (RAI and
Mediaset) were in breach of Article 10 of the Convention. In this regard Centro Europa 7
especially referred to the private broadcaster Mediaset - owned by the family of Prime Minister
Silvio Berlusconi - being treated preferentially and being the reason for the years-long
postponing of making frequencies available to other broadcasting companies.
The Grand Chamber of the European Court of Human Rights reiterates that a situation whereby a
powerful economic or political group in society is permitted to obtain a position of dominance
over the audiovisual media and thereby exercise pressure on broadcasters and eventually curtail
their editorial freedom undermines the fundamental role of freedom of expression in a
democratic society as enshrined in Article 10 of the Convention, in particular where it serves to
impart information and ideas of general interest, which the public is moreover entitled to receive.
It also clarifies that in such a sensitive sector as the audiovisual media, in addition to its negative
duty of non-interference the State has a positive obligation to put in place an appropriate
legislative and administrative framework in order to guarantee effective pluralism. It recognises
that the failure to allocate frequencies to Centro Europa 7 deprived the licence it obtained in
1999 of all practical purpose since the activity it authorised was de facto impossible to carry out
for nearly ten years, until June 2009. This substantial obstacle amounted to an interference with
Centro Europa 7’s exercise of its right to impart information and ideas. According to the
European Court this interference was not justified under the scope of Article 10§2 of the
Convention as it was not ‘prescribed by law’.
The Court indeed finds that the Italian legislative framework until 2009 lacked clarity and
precision and did not enable Centro Europa 7 to foresee, with sufficient certainty, the point at
which it might be allocated the frequencies and be able to start performing the activity for which
it had been granted a licence in 1999, notwithstanding the successive findings of the
Constitutional Court and the CJEU that the Italian law and practice was in breach of
constitutional provisions and EU law. Furthermore the laws in question were couched in vague
terms which did not define with sufficient precision and clarity the scope and duration of the
transitional schemes for the allocation of frequencies. The Court also notes that the authorities
did not observe the deadlines set in the licence, as resulting from Law no. 249/1997 and the
judgments of the Constitutional Court, thereby frustrating Centro Europa 7’s expectations. The
Italian Government has not shown that the company had effective means at its disposal to
compel the authorities to abide by the law and the Constitutional Court’s judgments.
Accordingly, it was not afforded sufficient guarantees against arbitrariness. For these reasons the
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Court considers that the legislative framework in Italy at the time did not satisfy the
foreseeability requirement under the Convention and deprived the company of the measure of
protection against arbitrariness required by the rule of law in a democratic society. This
shortcoming resulted, among other things, in reduced competition in the audiovisual sector. It
therefore amounted to a failure by the State to comply with its positive obligation to put in place
an appropriate legislative and administrative framework to guarantee effective media pluralism.
These findings were sufficient to conclude that there has been a violation of Centro Europa 7’s
rights to the freedom to express and impart ideas and information under Article 10 of the
Convention. The Court reached the same finding in relation to Article 1 of Protocol No. 1 (right
of property) being violated, as the interference with the Centro Europa 7 company’s property
rights did not have a sufficiently foreseeable legal basis either within the meaning of the Courts
case-law.
Centro Europa 7’s claim of EUR 10,000,000 in respect of non-pecuniary damage was also
awarded. The Court considered it appropriate to award this lump sum in compensation for the
losses sustained and the loss of earnings resulting from the impossibility of making use of the
licence by Centro Europa 7. In addition, the Court considered that the violations it had found of
Article 10 of the Convention and Article 1 of Protocol No. 1 in the instant case must have caused
Centro Europa 7 “prolonged uncertainty in the conduct of its business and feelings of
helplessness and frustration”. The Court also took into account that Centro Europa 7 already has
been awarded compensation at domestic level, referring to the judgment of 20 January 2009 of
the Consiglio di Stato awarding the company the amount of EUR 1,041,418 in compensation.
•
Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, ECHR 2012.
IRIS 2012-7/2
296
European Court of Human Rights: Mouvement raëlien suisse v. Switzerland
Dirk Voorhoof
The applicant association is the Swiss branch of the Raëlien Movement, an international
association whose members believe life on earth was created by extraterrestrials. The association
sought to conduct a poster campaign, but the local authorities refused permission on the grounds
of public order and morals. The domestic courts upheld this decision, arguing that although the
poster itself was not objectionable, because the Raëlien website address was included, one had to
have regard to the documents and content published on that website. The courts held that the
poster campaign could be banned on the basis that: (a) there was a link on the website to a
company proposing cloning services; (b) the association advocated “geniocracy” i.e. government
by those with a higher intelligence; and (c) there had been allegations of sexual offences against
some members of the association. Mouvement raëlien made an application to the European Court
arguing that the ban on its poster campaign was a violation of its right to freedom of expression
under Article 10 of the European Convention. In January 2011, the First Section of the Court
held that there had been no violation of Article 10. In its judgment of 13 July 2012 the Grand
Chamber has affirmed this finding, with a 9-8 vote.
The Court reasoned that because the main aim of the poster and website was to merely draw
people to the cause of the Raëlien Movement, the speech at issue was to be categorised as
somewhere between commercial speech and proselytising speech. The Court takes the view that
the type of speech in question is not political because the main aim of the website in question is
to draw people to the cause of the applicant association and not to address matters of political
debate in Switzerland. The Court clarifies that for this reason the management of public
billboards in the context of poster campaigns that are not strictly political may vary from one
State to another, or even from one region to another within the same State. The examination by
the local authorities of the question whether a poster satisfies certain statutory requirements - for
the defence of interests as varied as, for example, the protection of morals, road traffic safety or
the preservation of the landscape - thus falls within the margin of appreciation afforded to States,
as the authorities have a certain discretion in granting authorisation in this area.
The Court takes the view that the national authorities were reasonably entitled to consider,
having regard to all the circumstances of the case, that it was indispensable to ban the campaign
in question in order to protect health and morals, to protect the rights of others and to prevent
crime. The judgment also comments on the controversial approach of banning the poster mainly
on account of the content of the association’s website the poster referred to, while the association
remained free to communicate via that same website, the website indeed itself not being
prohibited, blocked or prosecuted for illegal content. In the Court’s view, however, such an
approach is justified: to limit the scope of the impugned restriction to the display of posters in
public places was a way of ensuring the minimum impairment of the applicant association’s
rights. The Court reiterates that the authorities are required, when they decide to restrict
fundamental rights, to choose the means that cause the least possible prejudice to the rights in
question. In view of the fact that the applicant association is able to continue to disseminate its
297
ideas through its website, and through other means at its disposal such as the distribution of
leaflets in the street or in letter-boxes, the impugned measure cannot be said to be
disproportionate. The majority of the Grand Chamber concluded that the Swiss authorities did
not overstep the broad margin of appreciation afforded to them in the present case, and the
reasons given to justify their decisions were “relevant and sufficient” and met a “pressing social
need”. Accordingly, there has been no violation of Article 10 of the Convention.
•
Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, ECHR 2012.
IRIS 2012-8/2
298
European Court of Human Rights: Schweizerische Radio- und Fernsehgesellschaft SRG v.
Switzerland
Dirk Voorhoof
The applicant company, the Swiss Radio and Television Company (SSR) is a radio and
television broadcaster based in Zurich. In 2004 it requested permission to have access to the
Hindelbank Prison in order to prepare a television interview with A., a prisoner serving a
sentence for murder. SSR wished to integrate this interview in the programme “Rundschau”, a
weekly programme covering political and economic questions, in a feature concerning the trial of
another person who had been accused of murder in the same case. SSR’s request was refused by
the prison authorities who referred to the need to maintain peace, order and safety and to ensure
equal treatment among prisoners. SSR complained about this refusal, on account of which it was
unable to broadcast the planned interview in its “Rundschau” programme. SSR submitted that an
interview with A., who had given her consent, was a matter of public interest given that even
after her conviction, the case had continued to attract a great deal of media interest. But all
appeals before the Swiss courts failed, as it was argued that the entitlement to film in prisons
could endanger prisoner rehabilitation and violate the personality rights of prisoners. It was also
argued that the organisation and supervision measures required for television filming exceeded
what could reasonably be expected of the prison authorities. It was suggested that instead of
filming in the prison, an audio recording or a simple interview could suffice, as images of the
prisoner were not necessary for the purposes of a thematic report. Relying on Article 10, SSR
complained in Strasbourg that it had not been granted permission to film an interview with a
prisoner inside a prison. It argued that this refusal amounted to a violation of its right to freedom
of expression and information.
The European Court observed that in determining an issue of freedom of expression in the
context of a very serious television broadcast devoted to a subject of particular public interest,
the Swiss authorities had limited discretion to judge whether or not the ban on filming had met a
“pressing social need”. While acknowledging that there had, at the outset, been grounds to justify
the ban on filming - in particular with regard to the presumption of innocence of the person who
was the subject of the programme and whose trial was imminent and the interests of the proper
administration of justice - the Court observed that the grounds for the courts’ refusal had not
been relevant or sufficient, either from the point of view of the other prisoners’ rights (privacy
and rehabilitation) or from the point of view of maintaining order or security reasons.
Furthermore, the Swiss courts had not examined the technical aspects submitted by SSR
regarding the limited impact of the filming. As regards the duty of the authorities to protect A.,
the European Court noted that she had given her full and informed consent to the filming. The
Court reiterated lastly, with regard to the alternatives to filming proposed by the Swiss
authorities, that since Article 10 also protected the form by which ideas and information were
conveyed, it was not for this Court, or for the national courts, to substitute their own views for
those of the media as to what technique of reporting should be adopted by journalists. The
telephone interview with A. broadcast by SSR in another programme had not in any way
remedied the interference caused by the refusal to grant permission to film in prison. While
299
reiterating that the national authorities in principle were better placed than the Court to make
decisions concerning access by third parties to a prison, the Court emphasized that in matters of
media reporting on issues of public interest, the margin of appreciation of the domestic
authorities is reduced and any interference in this context must be convincingly justified on
pertinent and sufficient grounds. The Court concluded that the absolute ban imposed on SSR’s
filming in the prison did not respond to this condition and had not met a “pressing social need”.
For that reason, the majority of the Court, with a 5/2 decision (the German and the Swiss judge
dissented), came to the conclusion that there has been a violation of Article 10 of the
Convention.
•
Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland, no. 34124/06, 21
June 2012.
IRIS 2012-8/3
300
European Court of Human Rights: Ressiot and Others v. France
Dirk Voorhoof
Once again the European Court has emphasised the importance of the protection of journalists’
sources, this time in a case concerning searches and seizures carried out at the French sporting
daily L'Equipe, the weekly magazine Le Point and at the homes of some of their journalists. This
judgment comes only a few months after the judgment of the European Court found a violation
of Article 10 of the European Convention by the French authorities for disrespecting the
protection of journalists’ sources (ECtHR 12 April 2012, Martin and Others v. France, Appl. Nr.
30002/08).
The case Ressiot and Others v. France concerns investigations carried out at the premises of
L’Equipe and Le Point and at the homes of five journalists accused of breaching the
confidentiality of a judicial investigation. Both newspapers had published a series of articles
about an ongoing investigation into alleged doping by the Cofidis cycle racing team in the Tour
de France, an investigation carried out by the Drugs Squad. The French authorities wanted to
identify the source of the leaks the journalists were obviously relying upon. Searches, seizures
and telephone tapping were ordered. The five journalists requested that all the material seized
and gathered during the searches at the newspapers’ offices and at their homes be declared null
and void. While some of the investigative measures were considered null and void by the French
courts, the seizure and placing under seal of certain materials were considered to be legitimate
interferences, not violating the rights of the journalists. The five journalist lodged an application
with the European Court of Human Rights, complaining that the investigations into their actions
had been carried out in violation of Article 10 of the Convention.
In its judgment the Court reiterates the importance of the protection of journalistic sources as one
of the cornerstones of freedom of the press. Without such protection, sources might be deterred
from assisting the press in informing the public. As a result, the vital public-watchdog role of the
press might be undermined and the ability of the press to provide accurate and reliable
information might be adversely affected. The Court accepts that the interference by the French
authorities out of concern for the confidentiality of the investigation had been aimed at
preventing the disclosure of confidential information, protecting the reputation of others,
ensuring the proper conduct of the investigation and therefore protecting the authority and
impartiality of the judiciary. According to the Court journalists cannot, in principle, be released
from their duty to obey the ordinary criminal law. The Court, however, notes that when the
searches were carried out and the telephone calls tapped, the sole aim had been to identify the
source of the information published in the newspaper articles, while the right of journalists not to
disclose their sources could not be considered a mere privilege to be granted or taken away
depending on the lawfulness or unlawfulness of their sources, but was part and parcel of the right
to information. In this case there was no overriding social need to justify the interference with
the journalists’ sources. The means used by the French authorities were not reasonably
proportionate to the legitimate aims pursued having regard to the interest of a democratic society
301
in ensuring and maintaining the freedom of the press. Hence the Court, unanimously, comes to
the conclusion that there has been a violation of Article 10 of the Convention.
•
Ressiot and Others v. France, no. 15054/07 and 15066/07, 28 June 2012.
IRIS 2012-9/2
302
European Court of Human Rights: Szima v. Hungary
Dirk Voorhoof
The applicant in this case, Ms Judit Szima, was the chairperson of the Tettrekész Police Trade
Union. She published a number of writings on the Trade Union’s website, which was effectively
under her editorial control. In some of these writings she sharply criticized the police
management, also referring to outstanding remunerations due to police staff, alleged nepotism
and undue political influence in the force, as well as dubious qualifications of senior police staff.
In 2010 Szima was convicted for instigation to insubordination. The Military Bench of the
Budapest Court of Appeal confirmed her sentence as a fine and demotion. It held that the
publication of the posted articles and statements on Tettrekész’s website had gone beyond
Szima’s freedom of expression, given the particularities of the armed body to which she
belonged. According to the Hungarian authorities, the views contained in the website articles
constituted one-sided criticism whose truthfulness could and should not be proven.
The Strasbourg Court confirms that the accusations by Szima of the senior police management of
political bias and agenda, transgressions, unprofessionalism and nepotism were indeed capable
of causing insubordination. The Court also observes that “it is true that Szima was barred from
submitting evidence in the domestic proceedings - a matter of serious concern - however, in her
attacks concerning the activities of police leadership, she failed to relate her offensive value
judgments to facts”. The Court is of the opinion that Szima “has uttered, repeatedly, critical
views about the manner in which police leaders managed the force, and accused them of
disrespect of citizens and of serving political interests in general”, and that these views
“overstepped the mandate of a trade union leader, because they are not at all related to the
protection of labour-related interests of trade union members” (§ 31). In view of the margin of
appreciation applicable, in order to maintain discipline by sanctioning accusatory opinions that
undermine trust in, and the credibility of, the police leadership, the European Court accepts that
there was a sufficient “pressing social need” to interfere with Szima’s freedom of expression. It
also found that the relatively mild sanction imposed on the applicant - demotion and a fine could not be regarded as disproportionate in the circumstances. By six votes to one, the Court
concluded that there has been no violation of Article 10 read in the light of Article 11 of the
Convention.
The outcome of the case is somewhat surprising, as the Court firmly took as its starting point that
“the members of a trade union must be able to express to their employer their demands by which
they seek to improve the situation of workers in their company. A trade union that does not have
the possibility of expressing its ideas freely in this connection would indeed be deprived of an
essential means of action. Consequently, for the purpose of guaranteeing the meaningful and
effective nature of trade union rights, the national authorities must ensure that disproportionate
penalties do not dissuade trade union representatives from seeking to express and defend their
members’ interests” (§ 28).
303
As the sole dissent, the president of the Chamber, Judge Tulkens, vehemently disagreed with the
reasoning of the Court. Tulkens refers to the finding by the Court’s majority that Szima’s critical
remarks had overstepped the mandate of a trade union leader, because some of them were “not at
all related to the protection of labour-related interests of trade union members”. Tulkens wonders
whether the Court itself has not overstepped its mandate by casting this judgment on the role of a
trade union leader and on the “legitimate” scope of trade-union activities. In Tulkens’ view, the
majority of the Court dismissed artificially the trade-union dimension of this case and, also
neglected the importance of freedom of expression in a democratic society.
•
Szima v. Hungary, no. 29723/11, 9 October 2012.
IRIS 2013-1/1
304
European Court of Human Rights: Telegraaf Media Nederland Landelijke Media B.V. and
Others v. the Netherlands
Dirk Voorhoof
For the third time in a short period, the European Court of Human Rights has found that the
Netherlands authorities have disrespected the right of journalists to protect their sources. This
time the Court is of the opinion that the telephone tapping and surveillance of two journalists by
the Netherlands security and intelligence services (AIVD) lacked a sufficient legal basis as the
law did not provide safeguards appropriate to the use of powers of surveillance against
journalists with a view to discovering their sources. Also an order to surrender leaked documents
belonging to the security and intelligence services is considered as a violation of the journalists’
rights as guaranteed by Article 10 of the Convention.
The case concerns the actions taken by the domestic authorities against two journalists of the
national daily newspaper De Telegraaf after having published articles about the Netherlands
secret service AIVD, suggesting that highly secret information had been leaked to the criminal
circuit, and more precisely to the drugs mafia. The journalists were ordered by the National
Police International Investigation Department to surrender documents pertaining to the secret
services’ activities. The two journalists had also been subject to telephone tapping and
observation by AIVD agents. Their applications in court regarding these measures failed, at the
level of the Regional Court in The Hague as well as at the level of the Supreme Court (Hoge
Raad). It was emphasized that the AIVD investigation was intended to make an assessment of
the leaked AIVD-files and, within that framework, it was considered necessary and proportionate
to use special powers against the journalists in possession of the leaked files. Also the phone
tapping was considered to meet the criteria of necessity, proportionality and subsidiarity.
The European Court however disagrees with this approach by the Netherlands’ authorities.
Referring to its earlier case law regarding the protection of journalists’ sources, the European
Court reemphasized the necessity of the “ex ante” character of a review by a judge, a court or
another independent body, as the police or a public prosecutor cannot be considered to be
objective and impartial so as to make the necessary assessment of the various competing
interests. The Court applies this approach also in the present case, as the use of special powers of
surveillance and telephone tapping against the journalists appeared to have been authorised by
the Minister of the Interior, or by an official of the AIVD, without prior review by an
independent body with the power to prevent or terminate it. Therefore, the Court finds that the
law did not provide safeguards appropriate to the use of powers of surveillance against
journalists with a view to discovering their sources. Regarding the second issue, the Court agrees
that the order to surrender the leaked documents to the AIVD was prescribed by law, that the
lawfulness of that order was assessed by a court and that it also pursued a legitimate aim. The
Strasbourg Court however estimates the interference with the right of journalists to protect their
sources in casu not necessary in a democratic society, as none of the reasons invoked by the
AIVD are considered relevant and sufficient by the European Court.
305
As a consequence of this judgment, the legal framework and the operational practices of many
security and intelligence services in Europe will need to be modified, in order to guarantee the
rights of journalists under Article 10 of the Convention. Without guarantees of an ex ante review
by a judge or an independent body, surveillance or telephone tapping or other coercive measures
against journalists by security and intelligence services are inevitably to be considered as
breaches of the rights of journalists covered by Article 10.
•
Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no.
39315/06, 22 November 2012.
IRIS 2013-2/2
306
European Court of Human Rights: Nenkova-Lalova v. Bulgaria
Dirk Voorhoof
In a controversial judgment, with a 4/3 decision, the European Court of Human Rights dismissed
the claim by a journalist, Ms. Nenkova-Lalova, regarding her dismissal from the Bulgarian
public broadcaster BNR. The BNR journalist complained that her disciplinary dismissal,
ostensibly on technical grounds regarding the way she had hosted one of her regular weekly
radio shows, had in reality been a sanction for the way in which she had exposed corrupt
practices during one of her radio shows. In that talk show unpleasant facts were revealed about
the then ruling political party. However, as Nenkova-Lalova essentially had breached
employment discipline within the meaning of the Bulgarian Labour Code and BNR regulations,
the European Court agreed with the findings of the Sofia Court of Appeal and the Bulgarian
Supreme Court that there had been no violation of Article 10 of the Convention.
The European Court accepts that Nenkova-Lalova’s dismissal did amount to an interference with
her rights under Article 10 of the Convention, but the dismissal was justified as it was prescribed
by law, it pursued the legitimate aim of protecting the rights of others and was “necessary in a
democratic society”. The European Court is of the opinion that Nenkova-Lalova’s dismissal was
based on her wilful disregard of an editorial decision concerning an issue of the internal
organisation of the BNR, related to the presentation of a radio show and the journalists (not)
participating in it. The Court observes that there had not been any limitations on the topics to be
discussed during her show, or on the substantive content or manner of presentation of the
information broadcast during the show. Therefore the Court cannot agree with the applicant that
her dismissal was intended to prevent the dissemination of information of public interest: her
capacity as a journalist “did not automatically entitle her to pursue, unchecked, a policy that ran
counter to that outlined by her employer, to flout legitimate editorial decisions taken by the
BNR’s management and intended to ensure balanced broadcasting on topics of public interest, or
to have unlimited access to BNR’s air. There is nothing in the facts of the present case to suggest
that the decisions of the BNR’s management in relation to the applicant’s show were taken under
pressure from the outside or that the BNR’s management was subject to outside interferences”.
The Court also comes to the conclusion that although it is true that a dismissal by way of
disciplinary sanction is a severe measure, it cannot be overlooked that the facts showed that her
employer could not trust her to perform her duties in good faith. Insisting that employment
relations should be based on mutual trust applies even more when it comes to journalists
employed by a public broadcasting organisation. In sum, the Court does not consider that
Nenkova-Lalova has established that her dismissal was intended to stifle her freedom to express
herself rather than enable the public broadcasting organisation by which she was employed - the
BNR - to ensure the requisite discipline in its broadcasts, in line with its “duties and
responsibilities” under Article 10 of the Convention. There has therefore been no violation of
that provision. The three dissenting judges are of the opinion that the functioning of the BNR and
especially the manner in which decisions relevant to the editorial choices of journalists hosting
programmes were dealt with, did not offer the necessary safeguards for the rights, activities,
performance and independence of the journalists in their relationship with the public employer.
307
They also consider that the act attributed to Nenkova-Lalova taken within this context of a rather
unclear division of responsibilities as concerns editorial choices within a given programme does
not appear to have been so grave or so far-reaching in its effects as to have irrevocably breached
the mutual trust between employer and employee. The opinion that the Bulgarian authorities
have violated Article 10 of the Convention however is not shared by the majority of the Court.
Four of the seven judges indeed found that the dismissal of the BNR journalist did not amount to
a breach of Article 10.
•
Nenkova-Lalova v. Bulgaria, no. 35745/05, 11 December 2012.
IRIS 2013-4/1
308
European Court of Human Rights: Ahmet Yildirim v Turkey
Dirk Voorhoof
The European Court of Human Rights has reinforced the right of individuals to access the
internet in a judgment against wholesale blocking of online content. A Turkish PhD student
named Ahmet Yildirim claimed before the European Court that he had faced “collateral
censorship” when his Google-hosted website was shut down by the Turkish authorities as a result
of a judgment by a criminal court order to block access to Google Sites in Turkey. The court
injunction was promulgated in order to prevent further access to one particular website hosted by
Google, which included content deemed offensive to the memory of Mustafa Kemal Atatürk, the
founder of the Turkish Republic. Due to this order Yildirim’s academically-focused website,
which was unrelated to the website with the allegedly insulting content regarding the memory of
Atatürk, was effectively blocked by the Turkish Telecommunications Directorate (TIB).
According to TIB, blocking access to Google Sites was the only technical means of blocking the
offending site, as its owner was living outside Turkey. Yildirim’s subsequent attempts to remedy
the situation and to regain access to his website hosted by the Google Sites service were
unsuccessful.
The European Court is unanimously of the opinion that the decision taken and upheld by the
Turkish authorities to block access to Google Sites amounted to a violation of Article 10 of the
European Convention on Human Rights and Fundamental Freedoms, guaranteeing the freedom
to express, receive and impart information and ideas 'regardless of frontiers'. The Court is of the
opinion that the order, in the absence of a strict legal framework, was not prescribed by law.
Although the order might have had a legitimate aim, as it was aimed at blocking a website
allegedly insulting the memory of Atatürk, the order was not sufficiently based on a strict legal
framework regulating the scope of a ban and affording the guarantee of judicial review to
prevent possible abuses. The Court clarifies that a restriction on access to a source of information
is only compatible with the Convention if a strict legal framework, containing such guarantees, is
in place. The judgment further makes clear that the Turkish courts should have had regard to the
fact that such a measure would render large amounts of information inaccessible, thus directly
affecting the rights of internet users and having a significant collateral effect. It is also observed
that the Turkish law had conferred extensive powers to an administrative body, the TIB, in the
implementation of a blocking order originally issued in relation to a specified website. Moreover,
there was no evidence that Google Sites had been informed that it was hosting content held to be
illegal, or that it had refused to comply with an interim measure concerning a site that was the
subject of pending criminal proceedings. Furthermore, the criminal court had not made any
attempt to weigh up the various interests at stake, in particular by assessing whether it was
necessary and proportionate to block all access to Google Sites. The European Court observes
that the Turkish law obviously did not require the court to examine whether the wholesale
blocking of Google was justified. Such a measure that renders large amounts of information on
the internet inaccessible must be considered however to effect directly the rights of Internet
users, having a significant collateral damage on their right of access to the Internet. As the effects
of the measure have been arbitrary and the judicial review of the blocking of access to internet
309
websites has been insufficient to prevent abuses, the interference with Mr. Yildirim’s rights
amounts to a violation of Article 10 of the Convention by the Turkish authorities.
With this judgment the European Court of Human Rights has explicitly reinforced the right of
individuals to access the internet, as in its ruling against the wholesale blocking of online
content, it asserted that the internet has now become one of the principal means of exercising the
right to freedom of expression and information.
•
•
Ahmet Yıldırım v. Turkey, no. 3111/10, ECHR 2012.
Fact sheet of December 2012 on the European Court’s case law on New Technologies
[Editor’s note: link to updated version of fact sheet (October 2013)].
IRIS 2013-2/1
310
European Court of Human Rights: Ashby Donald and others v. France
Dirk Voorhoof
For the first time in a judgment on the merits, the European Court has clarified that a conviction
based on copyright law for illegally reproducing or publicly communicating copyright-protected
material can be regarded as an interference with the right of freedom of expression and
information under Article 10 of the European Convention. Such interference must be in
accordance with the three conditions enshrined in the second paragraph of Article 10 of the
Convention. Due to the important wide margin of appreciation available to the national
authorities in this particular case, the impact of Article 10 however is very modest and minimal.
All three applicants in this case are fashion photographers. They were convicted in France for
copyright infringement following the publication of pictures on the Internet site Viewfinder. The
photos were taken at fashion shows in Paris in 2003 and published without the permission of the
fashion houses. The three fashion photographers were ordered by the Court of Appeal of Paris to
pay fines of between EUR 3,000 and EUR 8,000 and an award of damages to the French design
clothing Federation and five fashion houses, amounting in total to EUR 255,000. The
photographers were also ordered to pay for the publication of the judgment of the Paris Court of
Appeal in three professional newspapers or magazines. In its judgment of 5 February 2008 the
Supreme Court (Court de Cassation) dismissed the applicants’ argumentation based on Article 10
of the Convention and on Article 122-9° of the Code de la Propriété Intellectuelle (French
Copyright Act). The Supreme Court was of the opinion that the Court of Appeal had sufficiently
justified its decision, as the applicants could not rely on an exception in French copyright law,
allowing the reproduction, representation or public communication of works exclusively for
news reporting and information purposes.
In Strasbourg the applicants complained in particular of a breach of their rights under Article 10
of the European Convention. The Court explicitly recognises the applicability of Article 10 in
this case, considering the conviction of the applicants and the order to pay damages as an
interference with their right to freedom of expression, which also includes the publication of
pictures on the internet. The Court, however, is of the opinion that a wide margin of appreciation
is to be given to the domestic authorities in this case, as the publication of the pictures of models
at a fashion show and the fashion clothing shown on the catwalk in Paris was not related to an
issue of general interest to society and concerned a kind of “commercial speech”. Furthermore,
the member states are considered to be in a position to balance conflicting rights and interests,
such as the right of freedom of expression under Article 10 of the Convention with the right of
property (including intellectual property), as protected by Article 1 of the First Protocol to the
Convention.
The European Court agrees with the French Court’s finding that the applicants reproduced and
represented the pictures without the authorisation of the copyright holders, hence infringing the
rights of the intellectual property of others. The European Court refers to the reasoning by the
Paris Court, emphasizing that it saw no reason to consider “that the national judge had
311
overstepped his/her margin of appreciation by giving prevalence to the rights of fashion creators
over the right to freedom of expression of the applicants”. The European Court does not find the
fines and the award of damages disproportionate to the legitimate aim pursued, arguing that the
applicants gave no evidence that these sanctions had “financially strangled” them and referring
to the guarantees of a fair trial not being under dispute in this matter. In these circumstances and
taking into account the particularly important margin of appreciation of the national authorities,
the Court concludes unanimously that there is no violation of Article 10 of the Convention.
•
Ashby Donald and Others v. France, no. 36769/08, 10 January 2013.
IRIS 2013-3/1
312
European Court of Human Rights: Fredrik Neij and Peter Sunde Kolmisoppi (The Pirate
Bay) v. Sweden
Dirk Voorhoof
Only a few weeks after the Strasbourg Court’s judgment in the case of Ashby Donald and others
v. France (ECtHR 10 January 2013, see IRIS 2013-3/1), the Court has decided a new case of
conflicting rights, opposing copyright as intellectual property right under Article 1 of the First
Protocol and freedom of expression guaranteed by Article 10 of the Convention. The case
concerned the complaint by two of the co-founders of The Pirate Bay, that their conviction for
complicity to commit crimes in violation of copyright law had breached their freedom of
expression and information. During 2005 and 2006, Fredrik Neij and Peter Sunde Kolmisoppi
were involved in different aspects of one of the world’s largest file-sharing services on the
Internet, the website The Pirate Bay (TPB). TPB made it possible for users to come into contact
with each other through torrent files. The users could then, outside TPB’s computers, exchange
digital material through file-sharing. In 2008 Nej and Sunde were charged with complicity to
commit crimes in violation of the Swedish Copyright Act. Several companies in the
entertainment business brought private claims within the criminal proceedings procedure against
the defendants and demanded compensation for the illegal use of copyright-protected music,
films and computer games. In 2010 Neij and Sunde were convicted and sentenced to prison
sentences of ten and eight months respectively, and ordered to pay damages of approximately
EUR 5 million. Neij and Sunde complained under Article 10 of the Convention that their right to
receive and impart information had been violated when they were convicted for other persons’
use of TPB. They also alleged that they could not be held responsible for other people’s use of
TPB, the initial purpose of which was merely to facilitate the exchange of data on the Internet.
In its decision of 19 February 2013 the European Court affirmed that the applicants have put in
place the means for others to impart and receive information within the meaning of Article 10 of
the Convention and that consequently the convictions of Neij and Sunde interfered with their
right to freedom of expression. Such interference breaches Article 10 unless it was “prescribed
by law”, pursued one or more of the legitimate aims referred to in Article 10 § 2 and was
“necessary in a democratic society” to attain such aim or aims.
That the interference by the Swedish authorities was prescribed by law and pursued the
legitimate aim of the protection of rights of others and prevention of crime, was not under
discussion. Again the crucial question was whether this interference corresponded to a pressing
social need, meeting the test of necessity in a democratic society. The Court argued that the
Swedish authorities had a particularly wide margin of appreciation to decide on the matter especially since the information at stake was not given the same level of protection as political
expression and debate - and that their obligation to protect copyright under both the Copyright
Act and the Convention had constituted weighty reasons for the restriction of the applicants’
freedom of expression. Due to the nature of the information at hand and the balancing interest of
conflicting Convention rights, the wide margin of appreciation the national authorities could rely
on in this case, was therefore particularly important. The Swedish courts advanced relevant and
313
sufficient reasons to consider that the activities of Neij and Sunde within the commercially run
TPB amounted to criminal conduct requiring appropriate punishment. In reaching this
conclusion, the European Court had regard to the fact that the domestic courts found that Neij
and Sunde had not taken any action to remove the torrent files infringing copyright, despite
having been urged to do so. Instead they had been indifferent to the fact that copyright-protected
works had been the subject of file-sharing activities via TPB. Therefore, the Court concluded that
the interference with the right to freedom of expression of Neij and Sunde had been necessary in
a democratic society. It rejected the application under Article 10 of the Convention as manifestly
ill-founded.
•
Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden (dec.), no. 40397/12, ECHR 2013.
IRIS 2013-5/2
314
European Court of Human Rights: Eon v. France
Dirk Voorhoof
In a Chamber judgment of 14 March 2013 the European Court of Human Rights made clear that
the French president should not be overprotected against insulting statements, especially when
these statements, with a satirical undertone, have been uttered as part of a public or political
debate.
The case concerns the criminal conviction of Hervé Eon, a socialist and anti-GM activist living
in Laval, for insulting the President of France, Mr. Sarkozy. In 2008, during a visit to Laval by
the President of France, Eon waved a small placard reading “Casse toi pov’con” (“Get lost, you
sad prick”), an allusion to a much publicised phrase that the President himself had uttered earlier
that year at the International Agricultural Show in response to a farmer who had refused to shake
his hand. The phrase had given rise to extensive comment and media coverage and had been
widely circulated on the Internet and used as a slogan at demonstrations. Eon was immediately
arrested by police and taken to the police station. He was prosecuted by the public prosecutor for
insulting the president, an offence punishable under section 26 of the Freedom of the Press Act
of 29 July 1881. The court of first instance of Laval found, in particular, that by repeating the
phrase in question, Eon had clearly intended to cause offence to the head of State. Eon was fined
EUR 30, a penalty that was suspended. The judgment was upheld by the court of appeal of
Angers. Subsequently, an appeal to the Supreme Court (Court de Cassation) was dismissed. Eon
lodged an application with the European Court of Human Rights, arguing that his conviction for
insulting the President of France had infringed his freedom of expression.
While accepting that the phrase in issue, taken literally, was offensive to the French President,
the European Court considered that the showing of the placard with the slogan should be
examined within the overall context of the case. The European Court emphasized the importance
of free discussion of matters of public interest. The Court considered that Eon’s repetition of a
phrase uttered earlier by the President had not targeted the latter’s private life or honour; nor had
it simply amounted to a gratuitous personal attack against him. Instead, the Court took the view
that Eon’s criticisms had been political in nature. There was therefore little scope under Article
10 for restrictions on freedom of expression in the political sphere. The Court reiterated that
politicians inevitably and knowingly laid themselves open to close public scrutiny of their words
and deeds and consequently had to display a greater degree of tolerance towards criticism
directed at them. Furthermore, by echoing an abrupt phrase that had been used by the President
himself and had attracted extensive media coverage and widespread public comment, much of it
humorous in tone, Eon had chosen to adopt a satirical approach. Since satire was a form of
expression and comment that naturally aimed to provoke and agitate, any interference with the
right to such expression had to be examined with particular care. The European Court held that
criminal penalties for an expression and conduct such as that displayed by Eon were likely to
have a chilling effect on satirical contributions to discussion of matters of public interest, such
discussion being fundamental to a democratic society. The criminal penalty imposed on Eon,
although modest, had thus been disproportionate to the aim pursued and unnecessary in a
315
democratic society. The European Court therefore found a violation of Article 10 of the
Convention.
•
Eon v. France, no. 26118/10, 14 March 2013.
IRIS 2013-5/1
316
European Court of Human Rights: Saint-Paul Luxembourg S.A. v. Luxembourg
Dirk Voorhoof
Ten years after the finding by the European Court of a violation of Articles 8 (right to respect for
private and family life) and 10 (freedom of expression and information) of the European
Convention of Human Rights in the case Roemen and Schmit v. Luxembourg (25 February 2003,
IRIS 2003/5-3), the Luxembourg authorities have again been found in breach of these Articles by
issuing a search and seizure warrant disrespecting the protection of journalistic sources.
In 2009 a judicial investigation was opened concerning an article in the newspaper Contacto,
published by Saint-Paul Luxembourg S.A. The article described the situation of families who
had lost the custody of their children. A social worker who was mentioned in the article and his
employer, the central social welfare department, had lodged a complaint with the Attorney
General, alleging defamation of the social worker in question and also of the judicial and social
welfare system in Luxembourg in general. An investigating judge issued a search and seizure
warrant of the offices of the publishing house in order to identify the author of the article at
issue. A few days later, police officers presented themselves at the premises of the newspaper,
with the search warrant. The journalist who had written the article (his name was partly
mentioned under the article), was formally identified and he handed over a copy of the
newspaper, a notebook and various documents used in preparing the article. During the search
one of the police officers also introduced a USB-stick in the computer of the journalist,
eventually copying files from that computer. A short time later the applicant company and the
journalist applied to the District Court to have the warrant set aside and the search and seizure
operation declared null and void, but this claim was rejected. Later the Court of Appeal upheld
the warrant.
Relying on Article 8, Saint-Paul Luxembourg S.A. alleged that the search of the newspaper had
infringed the inviolability of its “home” and had been disproportionate. Relying on Article 10 it
argued that the measure in question had consisted of an attempt to identify the journalist’s
sources and had had an intimidating effect. With regard to Article 8 of the Convention, the
European Court is of the opinion that the investigating judge could have opted for a less intrusive
measure than a search in order to confirm the identity of the article’s author, as it was rather
obvious which journalist of Contacto had written the article at issue. As the search and seizure
operation was not necessary and had not been reasonably proportionate to the legitimate aims
pursued, the European Court held that there had been a violation of Article 8 of the Convention.
The Strasbourg Court also considered that the warrant in question had given the police officers
access to information that the journalist had not intended for publication and that would have
made it possible to identify his sources. The purpose of the warrant had been to search for “and
seize any documents or items, irrespective of form or medium, connected with the alleged
offences”. Being formulated in such broad terms, the warrant had conferred extensive powers on
the investigating officers. The search and seizure operation had been disproportionate in so far as
it had enabled the police officers to identify the journalist’s sources and the warrant itself had not
been sufficiently limited in scope to avoid the possibility of such abuse. Since the sole purpose of
317
the search had been to ascertain the identity of the journalist who had written the article, a more
narrowly-worded warrant would have sufficed. The European Court therefore also found a
•
Saint-Paul Luxembourg S.A. v. Luxembourg, no. 26419/10, 18 April 2013.
IRIS 2013-6/2
318
European Court of Human Rights: Animal Defenders International v. the United Kingdom
Dirk Voorhoof
The Grand Chamber of the European Court held, by nine votes to eight, that the UK’s ban on
political advertising on television did not violate Article 10 of the Convention. The majority
opinion in this controversial judgment reflects a somewhat particular approach compared to the
Court’s previous case law on political advertising, such as in VgT Vereinigung gegen
Tierfabriken v. Switzerland (see IRIS 2001-7/2 and IRIS 2009-10/2). Essentially the judgment in
the case of Animal Defenders International v. UK accepts that a total ban on political advertising
on television, characterized by a broad definition of the term “political”, with no temporal
limitations and no room for exceptions, is in accordance with the right to freedom of political
expression. The dissenting opinions attached to the judgment argued for a radically different
approach, but their arguments could not convince the majority of the Grand Chamber.
The applicant in this case is an NGO (Animal Defenders International, “ADI”) campaigning
against the use of animals in commerce, science and leisure, seeking to achieve changes in law
and public policy and to influence public and parliamentary opinion to that end. In 2005, ADI
began a campaign directed against the keeping and exhibition of primates in zoos and circuses
and their use in television advertising. As part of the campaign, it wished to screen a TV
advertisement with images of a girl in chains in an animal cage followed by a chimpanzee in the
same position. It submitted the advert to the Broadcast Advertising Clearance Centre (“the
BACC”), for a review of its compliance with relevant laws and codes. The BACC refused to
clear the advert, drawing attention to the political nature of ADI’s objectives, referring to section
321(2) of the Communications Act 2003, which prohibits advertisements “directed towards a
political end”. The refusal to broadcast the advert was confirmed by the High Court and later
reached the House of Lords, which held that the ban on political advertising and its application in
this case did not violate Article 10 of the European Convention. ADI subsequently submitted an
application to the European Court, arguing that the refusal of their advert breached Article 10 of
the Convention.
In the first part of its reasoning, the Court emphasizes that both ADI and the UK authorities had
the same objective of maintaining a free and pluralist debate on matters of public interest, and
more generally, of contributing to the democratic process as a legitimate aim. The Court weighed
in the balance, on the one hand, ADI’s right to impart information and ideas of general interest
which the public is entitled to receive, with, on the other hand, the authorities’ desire to protect
the democratic debate and process from distortion by powerful financial groups with
advantageous access to influential media.
The Court had three main considerations in making its assessment: the legislative process by
which the ban had been adopted and any review by the judicial authorities; the impact of the ban
and any steps that might have been taken to moderate its effect; and, what happens in other
countries, particularly those where the Convention applies. As far as the process was concerned,
account was taken of the fact that the complex regulatory regime governing political
319
broadcasting in the United Kingdom had been subjected to exacting and pertinent reviews and
validated by both parliamentary and judicial bodies. The Court also referred to the influential,
immediate and powerful impact of the broadcast media, while there is no evidence that the
development of the internet and social media in recent years in the United Kingdom has shifted
this influence to the extent that the need for a ban specifically on broadcast media should be
undermined, internet and social media not having “the same synchronicity or impact as
broadcasted information”. The Court also noticed that the ban was relaxed in a controlled fashion
for political parties - the bodies most centrally part of the democratic process - by providing them
with free party political, party election and referendum campaign broadcasts. The European
Court agreed with the UK authorities that allowing a less restrictive prohibition could give rise to
abuse and arbitrariness, such as wealthy bodies with agendas being fronted by social advocacy
groups created for that precise purpose or creating a large number of similar interest groups,
thereby accumulating advertising time. Given the complex regulatory background, this form of
control could lead to uncertainty, litigation, expense and delay.
As to the impact of the ban, the Court noted that the ban only applied to advertising and that ADI
had access to alternative media, both radio and television and also non-broadcast, such as print
media, the internet and social media, demonstrations, posters and flyers. Finally, because there is
no European consensus on how to regulate paid political advertising in broadcasting, this
broadens the margin of appreciation to be accorded to the UK authorities in this case.
Accordingly, the majority of the Court considers the reasons adduced by the authorities, to
justify the prohibition of ADI’s advertisement to be relevant and sufficient. The prohibition
cannot therefore be considered to amount to a disproportionate interference with ADI’s right to
freedom of expression. Hence there is no violation of Article 10 of the Convention.
•
Animal Defenders International v. the United Kingdom [GC], no. 48876/08, ECHR 2013
(extracts).
IRIS 2013-6/1
320
European Court of Human Rights: Meltex Ltd v. Armenia
Dirk Voorhoof
On 17 June 2008, the European Court of Human Rights delivered a judgment in the case of
Meltex Ltd and Movsesyan v. Armenia (see IRIS 2008-8/1). The Court held that there had been a
breach of Article 10 of the Convention as the refusal by the Armenian National Radio and
Television Commission (NTRC) to allocate a broadcasting license to Meltex, amounted to an
interference with Meltex’ freedom to impart information and ideas that did not meet the
Convention requirement of lawfulness. The Court noted, in particular, that a procedure that did
not require a licensing body to justify or motivate its decisions did not provide adequate
protection against arbitrary interference by a public authority with the fundamental right to
freedom of expression. In 2009 Meltex complained in Strasbourg that the Armenian authorities
had failed to enforce the Court’s judgment of 17 June 2008. In particular, relying on the Court’s
Grand Chamber judgment in the case of Verein gegen Tierfabriken Schweiz (VgT) v.
Switzerland (no. 2) (see IRIS 2009-10/2), Meltex claimed that the refusal of the Court of
Cassation in Armenia to reopen its case constituted a fresh violation of its freedom of expression
under Article 10 of the Convention.
In its decision of 21 May 2013, the European Court of Human Rights reiterates that a judgment
in which the Court finds a breach of the Convention or its Protocols imposes on the respondent
State a legal obligation not just to pay those concerned the sums awarded by way of just
satisfaction. The State must also take the appropriate general or individual measures required to
put an end to the violation found by the Court and to redress so far as possible the effects of that
violation. Subject to monitoring by the Committee of Ministers, the respondent State however
remains free to choose the means by which it will discharge its legal obligations under the
Convention, provided that such means are compatible with the conclusions set out in the Court’s
judgment. The European Court itself does not have jurisdiction to verify whether a State has
complied with the obligations imposed on it by one of the Court’s judgments. The situation is
different however when it concerns a new interference or a new issue. A “new issue” can result
from the continuation of the violation that formed the basis of the Court’s initial decision, but the
determination of the existence of a “new issue” very much depends on the specific circumstances
of a given case. In Meltex Ltd and Movsesyan v. Armenia, the Committee of Ministers ended its
supervision of the execution of the Court’s judgment of 17 June 2008, after the refusal by the
Court of Cassation to reopen the proceedings. Although the Committee of Ministers had been
informed that the Court of Cassation had dismissed the application to reopen the proceedings, in
its resolution the Committee of Ministers declared itself satisfied with the individual and general
measures taken by the Republic of Armenia to execute the Court’s judgment. That being so, the
Court finds that it has no jurisdiction to examine Meltex’ complaint as it did not contain a new
issue and therefore the application is incompatible ratione materiae with the provisions of the
Convention. The Court rejected the application under Article 10 of the Convention as manifestly
ill-founded.
•
Meltex Ltd. v. Armenia (dec.), no. 45199/09, ECHR 2013.
321
IRIS 2013-7/2
322
European Court of Human Rights: Youth Initiative for Human Rights v. Serbia
Dirk Voorhoof
In its judgment of 25 June 2013, the European Court of Human Rights has recognised more
explicitly than ever before the right of access to documents held by public authorities, based on
Article 10 of the Convention (right to freedom of expression and information). The judgment
also emphasised the importance of NGOs acting in the public interest.
The case concerns an NGO, known as Youth Initiative for Human Rights, that is monitoring the
implementation of transitional laws in Serbia with a view to ensuring respect for human rights,
democracy and the rule of law. The applicant NGO requested the intelligence agency of Serbia to
provide it with some factual information concerning the use of electronic surveillance measures
used by that agency in 2005. The agency at first refused the request, relying on the statutory
provision applicable to secret information. After an order by the Information Commissioner that
the information at issue should be disclosed under the Serbian Freedom of Information Act 2004,
the intelligence agency notified the applicant NGO that it did not hold the requested information.
Youth Initiative for Human Rights complained in Strasbourg about the refusal to have access to
the requested information held by the intelligence agency, notwithstanding a final and binding
decision of the Information Commissioner in its favour.
The European Court is of the opinion that as Youth Initiative for Human Rights was obviously
involved in the legitimate gathering of information of public interest with the intention of
imparting that information to the public and thereby contributing to the public debate, there has
been an interference with its right to freedom of expression as guaranteed by Article 10 of the
Convention. The Court recalls that the notion of “freedom to receive information” embraces a
right of access to information. Although this freedom may be subject to restrictions that can
justify certain interferences, the Court emphasises that such restrictions ought to be in
accordance with domestic law. The Court is of the opinion that the refusal to provide access to
public documents did not meet the criterion as being prescribed by law. It refers to the fact that
the intelligence agency indeed informed the applicant NGO that it did not hold the information
requested, but for the Court it is obvious that this “response is unpersuasive in view of the nature
of that information (the number of people subjected to electronic surveillance by that agency in
2005) and the agency’s initial response”. The Court comes to the conclusion that the “obstinate
reluctance of the intelligence agency of Serbia to comply with the order of the Information
Commissioner” was in defiance of domestic law and tantamount to arbitrariness, and that
accordingly there has been a violation of Article 10 of the Convention. It is interesting to note
that the Court reiterates in robust terms that an NGO can play a role as important as that of the
press in a democratic society: “when a non-governmental organisation is involved in matters of
public interest, such as the present applicant, it is exercising a role as a public watchdog of
similar importance to that of the press”. Finally, as a measure under Article 46 of the
Convention, the Court ordered the Serbian State to ensure, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the
intelligence agency of Serbia to provide the applicant NGO with the information requested.
323
•
Youth Initiative for Human Rights v. Serbia, no. 48135/06, 25 June 2013.
IRIS 2013-8/1
324
European Court of Human Rights: Nagla v. Latvia
Dirk Voorhoof
Once again the European Court of Human Rights has found a breach of Article 10 of the
Convention in a case of protection of journalistic sources. The Court is of the opinion that the
Latvian investigating authorities failed to adequately protect the sources of a journalist of the
national television broadcaster Latvijas televīzija (LTV), Ms Nagla. The journalist’s home was
searched and data storage devices were seized following a broadcast she had aired informing the
public of an information leak from the State Revenue Service (Valsts ieņēmumu dienests - VID)
database. Almost three months after the broadcast of the programme on LTV, Ms Nagla’s home
was searched, and a laptop, an external hard drive, a memory card, and four flash drives were
seized with the aim of collecting information concerning the data leaks at VID. The search
warrant was drawn up by the investigator and authorised by a public prosecutor. Relying on
Article 10 of the European Convention, Ms Nagla complained that the search of her home meant
that she had been compelled to disclose information that had enabled a journalistic source to be
identified, violating her right to receive and impart information.
According to the Court the concept of journalistic “source” refers to “any person who provides
information to a journalist”, while “information identifying a source” includes, as insofar as they
are likely to lead to the identification of a source, both “the factual circumstances of acquiring
information from a source by a journalist” and “the unpublished content of the information
provided by a source to a journalist”. While recognising the importance of securing evidence in
criminal proceedings, the Court emphasises that a chilling effect will arise wherever journalists
are seen to assist in the identification of anonymous sources. The Court confirms that a search
conducted with a view to identifying a journalist’s source is a more drastic measure than an order
to divulge the source’s identity, and it considers that it is even more so in the circumstances of
the present case, where the search warrant was drafted in such vague terms as to allow the
seizure of “any information” pertaining to the crime under investigation allegedly committed by
the journalist’s source, irrespective of whether or not his identity had already been known to the
investigating authorities. The Court reiterates that limitations on the confidentiality of
journalistic sources call for the most careful scrutiny by the Court. It also emphasises that any
search involving the seizure of data storage devices such as laptops, external hard drives,
memory cards and flash drives belonging to a journalist raises a question of the journalist’s
freedom of expression including source protection and that the access to the information
contained therein must be protected by sufficient and adequate safeguards against abuse. The
scarce motivation of the domestic authorities as to the perishable nature of evidence linked to
cybercrimes in general, cannot be considered sufficient in the present case, given the
investigating authorities’ delay in carrying out the search and the lack of any indication of
impending destruction of evidence. The Court finds that the investigating judge failed to
establish that the interests of the investigation in securing evidence were sufficient to override
the public interest in the protection of the journalist’s freedom of expression, including source
protection. Because of the lack of relevant and sufficient reasons, the interference with Ms
325
Nagla’s freedom to impart and receive information did not correspond to a “pressing social
need”, hence there was a violation of Article 10 of the Convention.
•
Nagla v. Latvia, no. 73469/10, 16 July 2013.
IRIS 2013-8/2
326
European Court of Human Rights: Węgrzynowski and Smolczewski v. Poland
Dirk Voorhoof
The European Court of Human Rights (ECHR) has recently clarified the application of freedom
of expression when conflicting with personality rights in the environment of online news media
and digital archives. The case concerns the complaint by two lawyers that a newspaper article
damaging to their reputation - which the Polish courts, in previous libel proceedings, had found
to be based on insufficient information and in breach of their rights - remained accessible to the
public on the newspaper’s website. They complained that the Polish authorities, by refusing to
order that the online version of the news article should be removed from the newspaper’s website
archive, breached their rights to respect for their private life and reputation as protected by
Article 8 of the European Convention on Human Rights.
In its judgment, the Court emphasises the potential impact of online media, stating that the
Internet is “an information and communication tool particularly distinct from the printed media,
especially as regards the capacity to store and transmit information”. The Court stresses the
substantial contribution made by Internet archives to preserving and making available news and
information and it reiterates that news archives “constitute an important source for education and
historical research, particularly as they are readily accessible to the public and are generally free.
While the primary function of the press in a democracy is to act as a ‘public watchdog’, archives
have a valuable secondary role in maintaining and making available to the public archives
containing news which has previously been reported”. According to the Court the internet “is not
and potentially never be subject to the same regulations and control” as the traditional media.
The Court, however, also recognises that “the risk of harm posed by content and communications
on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right
to respect for private life, is certainly higher than that posed by the press”. Therefore it accepts
that the policies governing reproduction of material from the printed media and the Internet may
differ, taking also into consideration technology’s specific features in order to secure the
protection and promotion of the rights and freedoms at issue.
Turning to the particular circumstances of the case, the Court is of the opinion that the
newspaper was not obliged to completely remove from its Internet archive the article at issue, as
was requested by the two lawyers. The Court firmly states “that it is not the role of judicial
authorities to engage in rewriting history by ordering the removal from the public domain of all
traces of publications which have in the past been found, by final judicial decisions, to amount to
unjustified attacks on individual reputations” and it also refers to the legitimate interest of the
public to have access to the public Internet archives of the press, as being protected under Article
10 of the Convention. The Court is of the view that the alleged violations of rights protected
under Article 8 of the Convention should be redressed by more adequate remedies available
under domestic law and it refers to the observation by the Warsaw Court of Appeal in the present
case, that it would have been desirable to add a comment to the article on the website informing
the public of the outcome of the civil proceedings in the earlier libel case regarding the printed
version of the article. The Court observes that in the proceedings at the domestic level the
327
applicants did not submit a specific request for the information to be rectified by means of the
addition of a reference to the earlier judgments in their favour. It follows from the Court’s
judgment that a rectification or a reference to the judgment in the libel case about the printed
version of the article at issue, would have been a pertinent and sufficient interference with the
rights of the newspaper in order to secure in its online archives the effective protection of the
applicants’ rights. Hence, the Court accepts that the Polish authorities complied with their
obligation to strike a balance between the rights guaranteed by Article 10 and Article 8 of the
Convention. The requested limitation on freedom of expression for the sake of the applicants’
reputation in the circumstances of the present case would have been disproportionate under
Article 10 of the Convention. Therefore the Court comes to the conclusion that there has been no
•
Węgrzynowski and Smolczewski v. Poland, no. 33846/07, 16 July 2013.
IRIS 2013-9/1
328
European Court of Human Rights: Von Hannover no. 3 v. Germany
Dirk Voorhoof
The European Court of Human Rights has delivered a new judgment regarding a complaint by
Princess Caroline von Hannover that the German courts had not sufficiently protected her right
to privacy as guaranteed by Article 8 of the Convention, by giving too much weight to the right
of the press as guaranteed by Article 5 of the German Constitution and Article 10 of the
European Convention (see earlier also Von Hannover no. 1 v. Germany, IRIS 2004-8/2 and Von
Hannover no. 2 v. Germany, IRIS 2012-3/1). This time the Princess of Monaco lodged an appeal
in Strasbourg relating to the refusal by the German courts to grant an injunction prohibiting any
further publication of a photograph of her and her husband. The photograph that was the subject
of the litigation was published in the magazine 7 Tage in 2002. It was taken without the Princess’
knowledge while on holiday and it illustrated an article about the trend among the very wealthy
towards letting out their holiday homes. With reasoning similar to that of Von Hannover no. 2,
the European Court could not find a violation of Article 8 of the Convention.
The European Court refers to its judgments in Axel Springer AG v. Germany and Von Hannover
no. 2 v. Germany (see IRIS 2012-3/1) in which it set forth the relevant criteria for balancing the
right to respect for private life (Article 8) against the right to freedom of expression (Article 10).
These were: contribution to a debate of general interest; how well-known the person concerned
was; the subject of the report; the prior conduct of the person concerned; the content, form and
consequences of the publication; and, in the case of photographs, the circumstances in which
they were taken. The Court refers to the findings by the German courts that, while the
photograph in question had not contributed to a debate of general interest, the article with the
litigious picture, however, reported on the current trend among celebrities towards letting out
their holiday homes, which constituted an event of general interest. The article did not contain
particular information concerning the private life of the Princess, as it focused on practical
aspects relating to the Von Hannover’s villa and its letting. The Court also referred to the fact
that the Princess and her husband were to be regarded as public figures who could not claim
protection of their private lives in the same way as individuals unknown to the public. The
European Court concluded that the German courts had not failed to comply with their positive
obligations to protect the right of privacy in its confrontation with the freedom of press.
Therefore there had been no violation of Article 8 of the Convention.
•
Von Hannover v. Germany (no. 3), no. 8772/10, 19 September 2013.
IRIS 2013-10
329
European Court of Human Rights: Belpietro v. Italy
Dirk Voorhoof
The European Court of Human Rights has delivered a new judgment against Italy for interfering
with the freedom of expression and public statements related to the “war” between judges,
prosecutors and the police in the context of combating the Mafia (see also Perna v. Italy (GC),
see IRIS 2003-8/2). The judgment reflects a tension between the freedom of parliamentary
speech on the one hand, and the restrictions and obligations on the media reproducing or
publishing statements by politicians covered by their parliamentary immunity on the other hand
(see also Cordova no.1 and no.2 v. Italy, see IRIS 2003-7/2).
The applicant in this case is Maurizio Belpietro, who at the relevant time was editor of the
national daily newspaper Il Giornale. In court in Strasbourg he complained about his conviction
for defamation after publishing an article by an Italian Senator, R.I. The article by the Senator
was a robust opinion piece analysing the lack of results in combating the Mafia in Palermo. The
Senator more particularly criticised the Italian judiciary and especially accused some members of
the public prosecutors’ office in Palermo of using political strategies in their fight against the
Mafia. Two prosecutors, Guido Lo Forte and Giancarlo Gaselli considered some of the
allegations in the Senator’s article as damaging to their professional and personal reputations.
They lodged a complaint for defamation against Senator R.I. and Belpietro. Regarding the
liability of the editor of Il Giornale, the prosecutors relied on Article 57 of the Criminal Code,
making the editor or assistant editor of a newspaper responsible for lack of control when
publishing defamatory statements without a sufficient factual basis.
Separate proceedings were brought against Senator R.I. which ended in 2007 with a finding that
there was no case to answer, on the grounds that the Senator had expressed his views in his
capacity as a member of the Senate, and was thus shielded by his parliamentary immunity based
on Article 68§1 of the Italian Constitution. The Senate accepted that the statements published by
Senator R.I. were related to the exercise of his parliamentary functions. Belpietro however was
sentenced to a suspended term of four months’ imprisonment and he was ordered to pay
substantial sums to each of the civil parties, adding to a total amount of EUR 110,000. The Court
of Appeal of Milan considered some of the allegations against the members of the judiciary as
defamatory of Lo Forte and Caselli.
Belpietro made an application to the Strasbourg Court, alleging that his conviction for
defamation had amounted to a violation of his freedom of expression guaranteed by Article 10 of
the Convention. After reiterating extensively the general principles of its relevant case law on the
issue, including the balance that has to be found between the prosecutors’ right to his reputation
based on Article 8 and the newspaper editor’s right to freedom of expression based on Article 10,
the European Court is of the opinion that the Italian authorities did not breach Article 10 in
finding Belpietro liable for publishing the defamatory article of Senator R.I. Although the Court
recognises that the article concerned an issue of importance to society that the public had the
right to be informed about, it emphasises that some of the allegations against Lo Forte and
330
Caselli were very serious, without sufficient objective basis. Furthermore, the Court refers to the
obligation of an editor of a newspaper to control what is published, in order to prevent the
publication of defamatory articles in particular. This duty does not disappear when it concerns an
article written by a member of parliament, as otherwise, according to the Court, this would
amount to an absolute freedom of the press to publish any statement of members of parliament in
the exercise of their parliamentary mandate, regardless of its defamatory or insulting character.
The Court also refers to the fact that Senator R.I. had already been convicted in the past for
defamation of public officials and to the fact that the newspaper had given a prominent place to
the Senator’s article in the newspaper. However, as the Court considers the sanction of
imprisonment and the high award of damages as disproportionate to the aim pursued, it comes to
the conclusion that solely for that reason the interference by the Italian authorities amounted to a
breach of Article 10 of the Convention. The Court especially draws attention to the fact that a
sentence of imprisonment (even if suspended) can have a significant chilling effect and that the
conviction was essentially because of not having executed sufficient control before publishing a
defamatory article. Therefore there were no exceptional circumstances justifying such a severe
sanction. A unanimous Court concludes that Italy has violated Article 10 of the Convention,
awarding Belpietro just satisfaction in terms of EUR 10,000 non-pecuniary damage and EUR
5,000 for costs and expenses.
• Belpietro v. Italy, no. 43612/10, 24 September 2013.
IRIS 2013-10
331
Appendices
Appendix I: List and summaries of cases reported on in IRIS, but not included in the main
selection (cases that were struck off the list/in which friendly settlements were reached).
Appendix II: Overview of cases in alphabetical order.
Appendix III: Overview of cases by country.
Appendix IV: ECHR – full text (as amended by protocols)
332
Appendix I: List and summaries of cases reported on in IRIS, but not included in the main selection (cases that were struck off the list/in
which friendly settlements were reached).
Case Summaries
1
Appn. No. Date
Keywords
HUDOC
Public policy, prohibition of commercial
broadcasting
Friendly settlement, positive obligations, political
expression, incitement to hatred or hostility
Friendly settlement, propaganda, terrorism, hate
speech, incitement to hatred or hostility based on
race or religion
race or religion
race or religion
Full text
18/07/ FS
2002
Friendly settlement, insulting caricature, satire,
artistic expression
Full text
03/09/ FS
2002
02/10/ FS
2003
Positive obligation, separatist propaganda,
terrorism
Political expression, separatist propaganda,
terrorism
Full text
2
Telesystem
Tirol
Austria
Altan v. Turkey
3
Ali Erol v. Turkey
35076/97
4
Özler v. Turkey
25753/94
11/07/ FS
2002
5
16/07/ FS
2002
6
26976/95,
28305/95
and
28307/95
34320/96
Freiheitliche
Landesgruppe Burgerland
v. Austria
Mehmet Bayrak v. Turkey 27307/95
7
8
v. 19281/91
Outcome
09/06/ FS
1997
14/05/ FS
2002
20/06/ FS
2002
32985/96
Zarakolu v. Turkey (Nos. 37059/97,
1-3)
37061/97
and
37062/97
333
Full text
Full text
Full text
Full text
Full text
Page
European Court of Human Rights: Case of Telesystem Tirol Kabeltelevision Struck Out of
the List
Dirk Voorhoof
Telesystem Tirol Kabeltelevision applied to the European Commission of Human Rights in
1991, relying on Article 10 of the European Convention for the protection of human rights and
fundamental freedoms. As a local cable TV network (Gemeinschaftsantennenanlage - in the
USA referred to as cable TV system), it complained that, pursuant to Austrian law, it had been
refused permission to distribute its own TV programmes ("active broadcasting") and was only
authorised to receive already existing broadcast programmes and retransmit them to the
subscribers of the local network ("passive broadcasting").
The refusal to grant the right to distribute its own programmes was based on the general
broadcasting monopoly in favour of the Austrian Broadcasting Corporation. The Commission, in
its report of 18 October 1995, considered that arguments similar to those in the case of
Informationsverein Lentia vs. Austria (ECourtHR, 24 November 1993, vol. 276), led to the
conclusion that the restriction on the freedom to impart information by prohibiting private
broadcasting, as this was based on the Austrian Broadcasting monopoly, was not necessary in a
democratic society and hence was in breach of Article 10, par. 2 of the Convention. The
Telesystem Tirol Kabeltelevision case then was referred to the European Court of Human Rights.
In the meantime however, the Austrian Constitutional Court in two judgments (Constitutional
Court, 27 September 1995 (see IRIS 1996-6: 8) and 8 October 1996 (see IRIS 1997-2: 5)
declared that the prohibition of "active broadcasting" by local TV networks and the prohibition
of commercial advertising by private broadcasters is in breach of Article 10 of the European
Convention, under reference also to the European Court's judgment of 24 November 1993 in the
case of Informationsverein Lentia . The European Court now in its judgement of 9 June 1997
took formal note of a friendly settlement of the matter between the Austrian government and the
applicant. The Court follows the request by the applicant to strike the case out of the list, since
active broadcasting and the dissemination of commercial advertising by local TV networks are
now legally permissible in Austria. The Court is of the opinion that there is no reason of public
policy to continue the litigation. The Austrian broadcasting law finally seems to be in accordance
now with Article 10 of the European Convention on Human Rights, in as far as the Monopoly of
the Public Broadcasting Organisation Case come to an end.
•
Telesystem Tirol Kabeltelevision v. Austria (friendly settlement), 9 June 1997, Reports of
Judgments and Decisions 1997-III.
IRIS 1997-7/5
334
European Court of Human Rights: Friendly Settlement in Altan v. Turkey
Dirk Voorhoof
Since 1998, the European Court of Human Rights has come to the conclusion that there has been
a violation of freedom of (political) expression in Turkey in more than 15 cases. All of these
cases concerned the criminal convictions of journalists, editors, publishers, writers, lawyers,
politicians or human rights activists for infringement of Articles 159 or 312 of the Criminal Code
or of Articles 6-8 of the Prevention of Terrorism Act, nr. 3712. In all of these cases, the
applicants were convicted in Turkey for inciting the people to hatred and hostility based on
distinctions of race or religion, or for undermining territorial integrity and the unity of the nation.
The Strasbourg Court, however, considered these convictions to be violations of Article 10 of the
European Convention, as they failed to give due recognition to the importance of freedom of
critical and political speech in a democratic society (see IRIS 1999-8: 4, IRIS 2000-4: 2,
IRIS 2000-7: 2, IRIS 2000-8: 2, IRIS 2000-10: 3and IRIS 2002-3: 2). On several occasions, the
Committee of Ministers has requested the Turkish authorities to bring their legislation and
jurisprudence into conformity with the case-law of the European Court of Human Rights.
In a judgment of 14 May 2002, the Court has now enacted a friendly settlement between a
Turkish applicant and the Turkish Government in a case in which freedom of political expression
was also at stake. Ahmet Hüsrev Altan, who is a writer and journalist for the national daily,
Milliyet, was given a suspended sentence of one year and eight months' imprisonment and a fine
of TRL 500,000 by the National Security Court in 1995, for incitement to hatred and hostility on
the basis of a distinction based on membership of a race or a religion. Relying on Article 10, he
complained in Strasbourg of an infringement of his right to freedom of expression. The Turkish
authorities have now recognised that steps have to be taken at the domestic level in order to
guarantee freedom of expression according to Article 10 of the Convention. Before the Court, the
Turkish Government made the following statement: "The Court's rulings against Turkey in cases
involving prosecutions under Article 312 of the Penal Code or under the provisions of the
Prevention of Terrorism Act clearly show that Turkish law and practice urgently need to be
brought into line with the Convention's requirements under Article 10 of the Convention. This is
also reflected in the interference underlying the facts of the present case. The Government
undertake to this end to implement all necessary reform of domestic law and practice in this area,
as already outlined in the National Programme of 24 March 2001."
Referring to this commitment, the Court has decided to strike out the case following the friendly
settlement in which the applicant is to be paid EUR 4,573.47 for any pecuniary damages and for
costs and expenses incurred.
•
Altan v. Turkey (friendly settlement), no. 32985/96, ECHR 2002-III.
IRIS 2002-7/2
335
European Court of Human Rights: Four Friendly Settlements in Cases on Freedom of
Expression (Turkey and Austria)
Dirk Voorhoof
After the finding by the European Court of Human Rights of several violations of freedom of
expression in Turkey, it seems that the Turkish Government has now become aware of the fact
that some restrictions and penalties can manifestly no longer be tolerated from the perspective of
Article 10 of the Convention. Shortly after the adoption of a friendly settlement in the case of
Altan v. Turkey on 14 May 2002 (see IRIS 2002-7: 2-3), the Court again took note of the
agreements reached between the parties in three different cases against Turkey.
In each of these cases, the Turkish Government promised that steps would be taken in order to
guarantee the right to freedom of expression and information, including the offer to pay an
amount of damages to the applicants. Before the Court, the Turkish Government made the
following statement: "The Court's rulings against Turkey in cases involving prosecutions under
Article 312 of the Criminal Code and under Article 8 para. 1 of the Prevention of Terrorism Act
show that Turkish law and practice urgently need to be brought into line with the Convention's
requirements under Article 10 of the Convention. This is also reflected in the interference
underlying the facts of the present case. The Government undertake to this end to implement all
necessary reform of domestic law and practice in this area, as already outlined in the National
Programme of 24 March 2001. The Government refer also to the individual measures set out in
Interim Resolution adopted by the Committee of Ministers of the Council of Europe on 23 July
2001 (ResDH (2001) 106), which they will apply to the circumstances of cases such as the
instant one". While this statement was made in the Özler case, the essence of the statements
delivered by the Turkish Government in the other cases was the same.
All applicants had been found guilty some years ago of dissemination of propaganda against the
indivisibility of the State (Prevention of Terrorism Act) or incitement to hatred and hostility
arising from a distinction based on race or religion (Article 312 of the Criminal Code). Ali Erol
(a journalist), Sürek (a lawyer and publisher) and Özler (a human rights activist) had criticised
the policy of the Turkish authorities on the Kurdish Question in newspapers or in public
speeches. Each of them had initiated an application against Turkey, complaining, inter alia, of a
Referring to the commitments undertaken by the Turkish Government in each case and
recognising that the friendly settlements are based on respect for human rights as defined by the
European Convention, the Court has accordingly struck these cases out of the list.
Another friendly settlement was reached in the case of Freiheitliche Landesgruppe Burgenland v.
Austria on 18 July 2002. In this case, the applicant (a periodical) had been convicted because of
an insulting caricature under Section 115 of the Austrian Criminal Code. In order to reach a
friendly settlement before the Court, the Austrian Government has promised to pay the applicant
a sum of money as compensation in respect of any possible claims relating to the present
application, including an amount for costs and expenses incurred both in the domestic
336
proceedings and in the Convention proceedings. The applicant waives any further claims against
Austria relating to the application concerned. Referring to the agreement reached between the
parties and satisfied that the settlement is based on respect for human rights as defined by the
Convention, the Court struck the case out of the list.
•
•
•
•
Ali Erol v. Turkey (friendly settlement), no. 35076/97, 20 June 2002.
Özler v. Turkey (friendly settlement), no. 25753/94, 11 July 2002.
Sürek v. Turkey (no. 5) (friendly settlement), nos. 26976/95, 28305/95 and 28307/95, 16 July
2002.
Freiheitliche Landesgruppe Burgenland v. Austria, no. 34320/96, 18 July 2002.
IRIS 2002-9/4
337
European Court of Human Rights: Another Friendly Settlement in Freedom of Expression
Case (Turkey)
Dirk Voorhoof
Once again, the Turkish Government has recognised that an interference by the Turkish
authorities with freedom of political expression could not be legitimised from the perspective of
Article 10 of the European Convention on Human Rights. After reaching a friendly settlement in
the cases of Altan v. Turkey on 14 May 2002 (see IRIS 2002-7: 2); Ali Erol v. Turkey on 20
June 2002; Özler v. Turkey on 11 July 2002 and Sürek (no. 5) v. Turkey on 16 July 2002 (see
IRIS 2002-9: 3), the Court again took note of an agreement that has been reached between the
Turkish Government and a Turkish citizen who had applied to the European Court of Human
Rights because of an alleged breach of Article 10 of the Convention.
The applicant, Mehmet Bayrak, had been convicted in 1994 and 1995 by the Ankara National
Security Court of disseminating separatist propaganda on account of three books with Kurdish
themes written or published by him. After the seizure of the books, Bayrak was sentenced to a
total of two years' imprisonment and fined a total of TRL 250 million. The content of the books
was considered a crime under Article 8 of the Prevention of Terrorism Act.
The case has been struck out of the Court's list following a friendly settlement, after the Turkish
Government promised that steps would be taken to guarantee freedom of expression and
information, including the offer to pay an amount of damages to the applicant. The Turkish
Government made the following statement: "The judgments against Turkey given by the Court in
cases concerning prosecutions under Article 312 of the Criminal Code or the provisions of the
Prevention of Terrorism Act clearly show that Turkish law and practice must as a matter of
urgency be brought into conformity with the requirements of Article 10 of the Convention. That
is further evidenced by the interference complained of in the instant case. The Government
accordingly undertakes to make all the necessary changes to domestic law and practice in this
field, as set out in the National Programme of 24 March 2001. The Government further refers to
the individual measures mentioned in the Interim Resolution adopted by the Committee of
Ministers of the Council of Europe on 23 July 2001 (ResDH(2001)106), which it will implement
in circumstances such as those of the instant case."
•
Mehmet Bayrak v. Turkey (friendly settlement), no. 27307/95, 3 September 2002.
IRIS 2002-10/2
338
European Court of Human Rights: Friendly Settlements in Freedom of Expression Cases
(Turkey)
Dirk Voorhoof
In three cases involving Turkey concerning freedom of expression, an agreement was reached
between the applicant's widower, Mr. Zarakolu, and the Turkish Government. All three cases
concern the seizures of several books because of separatist propaganda. The Court, in its
judgments of 2 October 2003, took notice of the friendly settlements, referring to the declaration
from the Turkish Government in which it is recognised that the (former) Court's rulings against
Turkey in cases involving prosecutions under the provisions of the Prevention of Terrorism Act
relating to freedom of expression, and also the facts underlying the present cases, "show that
Turkish law and practice urgently need to be brought into line with the Convention's
requirements under Article 10 of the Convention". In all three cases the Court took note of the
agreement reached between the parties. The Court expresses its satisfaction that the settlement is
based on respect for human rights as defined in the Convention and its Protocols. It is ordered
that the cases be struck out of the list.
It is to be emphasised that recent modifications in Turkish law, as part of the 6 and 7 reform
packages of July and August 2003 (see IRIS 2003-9: 15), are significant steps forward with a
view to ensuring compliance with Article 10 of the European Convention on Human Rights. The
abrogation of Article 8 of the Prevention of Terrorism Act and the amendments to Articles 159
and 312 of the Criminal Code are of particular relevance in this context. Also, a comprehensive
reform of the Turkish Press Law is announced and will be discussed in Parliament in December
2003.
• Zarakolu v. Turkey (nos. 1-3) (friendly settlement), nos. 37059/97, 37061/97 and 37062/97, 2
October 2003.
IRIS 2004-1/5
339
Appendix II: Overview of cases in alphabetical order.
Case Summaries
Appn. No. Date
Outcome
09/04/ V 8
2009
151
A. v. Norway
28070/06
89
A. v. the United Kingdom
35373/97
17/12/
2002
100
Abdullah Aydin v. Turkey
42435/98
09/03/
2004
19
201
Ahmed & others v. the 22954/93
United Kingdom
Ahmet Yildirim v. Turkey 3111/10
02/09/
1998
18/12/
2012
170
Akdas v. Turkey
41056/04
16/02/
2010
58
Akkoç v. Turkey
10/10/
2000
173
Aksu v. Turkey
22947/93
and
22948/93
4149/04
and
41029/04
190
27/07/
2010
15/03/
Keywords
minors
NV 6, Political expression, right of access,
8, 13, defamation, discrimination, privacy
14
V
differences
NV
V
prescribed by law
V
NV
NV
14, 8
privacy
NV 8 Positive obligations, vulnerable groups,
340
HUDOC Page
Full text
216
Full text
112
Full text
128
Full text
49
Full text
309
Full text
248
Full text
75
Full text
255
Full text
287
Chamber]
and
41029/04
162
49330/0
50
24773/94
172
19452/02
206
Animal
Defenders 48876/08
Kingdom
[Grand
Chamber]
Arslan v. Turkey
23462/94
27
202
France
185
Moldova
Axel Springer AG v. 39954/08
Germany
24914/94
187
84
2012
privacy
11/02/ V
2010
value judgments
21/03/ NV
2000
2010
6
good faith
22/04/ NV
2013
08/07/ V
1999
10/01/ NV
2013
05/07/ V 8
2011
video , journalism
07/02/ V
2012
15/10/ V
Political expression, terrorism, incitement
2002
obligation
341
Full text
240
Full text
65
Full text
253
Full text
319
Full text
58
Full text
311
Full text
279
Full text
283
Full text
106
62
B. & P. v. the United 36337/97
Kingdom
and
35974/97
Bankovic & others v. 52207/99
Belgium & others
24/04/ NV
2001
necessity
Full text
79
12/12/ I
2001
Full text
89
29
Turkey
and
24408/94
08/07/ V
1999
Full text
58
212
Belpietro v. Italy
43612/10
24/09/
2013
Full text
330
51
Bergens
Norway
v. 26132/95
02/05/
2000
Full text
66
25
v. Norway
20/05/
1999
Full text
55
16
Kingdom
Di Stefano v. Italy
19/02/
1998
07/06/
2012
Full text
45
Full text
295
Ceylan v. Turkey
08/07/
1999
V
V
public watchdog
V
watchdog
V
V 10, Dominant position over the audiovisual
1(1)
V
Full text
58
70
194
32
Tidende
23556/94
342
130
Portugal
and
11319/03
France
26/04/ V
2007
53
Constantinescu
Romania
v. 28871/95
27/06/ NV
2000
92
2)
and
45649/99
Romania
30/01/ V 6
2003
63
Cyprus v. Turkey
25781/94
10/05/ V
2001
40
Dalban v. Romania
28114/95
28/09/ V
1999
117
77551/01
25/04/ V
2006
75
46833/99
14/03/ NV
2002
9
79
106
journalistic ethics
25/06/ V
2002
function of press
reputation
17/12/ V
2004
employment relation
24/02/ V
343
Full text
180
Full text
100
Full text
68
Full text: 118
No. 1
No. 2
Full text 138
Full text
80
Full text
59
Full text
159
Full text
94
Full text
39
Belgium
1997
86
73
Dichand
Austria
88
Turkey
Du Roy & Malaurie v. 34000/96
France
10/12/ V
2002
131
Dupuis & others v. France
1914/02
07/06/ V
2007
71
E.K. v. Turkey
28496/95
65
204
Eon v. France
26118/10
07/02/ V
2002
17/07/ V
2001
14/03/ V
2013
119
Erbakan v. Turkey
59405/00
06/07/ V
2006
31
Erdoğdu
Turkey
v. 25067/94
and
25068/94
08/07/ V
1999
57
&
and
others
İnce
38743/97
v. 29271/95
judgments
obligation
05/11/ NV
2002
26/02/ V
2002
03/10/ V
2000
on foreign origin
344
Full text
108
Full text
92
Full text
110
Full text
73
Full text
182
Full text
90
Full text
83
Full text
315
Full text
161
Full text
58
15/06/ V
2000
disorder or crime
2003
8
31/03/ I
2009
22/04/ V
2010
prison
12/07/ V
2001
52
Erdogdu v. Turkey
25723/94
96
33400/96
150
Faccio v. Italy
33/04
171
40984/07
66
Feldek v. Slovakia
29032/95
154
Féret v. Belgium
15615/07
16/07/ NV
2009
135
Filatenko v. Russia
73219/01
160
Flinkkilä & others v. 25576/04
Finland
22824/04
06/12/
2007
15/12/
2009
06/04/
2010
29/07/
2008
163
144
expression, election campaign, , public
debate
V
V
V
NV
345
Full text
68
Full text
124
Full text
215
Full text
250
Full text
84
Full text
222
Full text
190
Full text
235
Full text
242
Full text
203
193
Romania
10/05/ V
2012
203
19/02/ I
2013
23
Frederik Neij & Peter 40397/12
(dec.)
Fressoz & Roire v. France 29183/95
48
39293/98
29/02/ V
2000
76
Gaweda v. Poland
26229/95
34
Gerger v. Turkey
24919/94
14/03/ V
2002
08/07/ V
1999
175
Gillberg v. Sweden
41723/06
192
Chamber]
21/01/ V
1999
02/11/ NV
2010
10, 8
03/04/ NV
2012
346
pluralism
Copyright, The Pirate Bay, Internet filesharing service, illegal use of copyrightprotected music, conviction, margin of
appreciation
Full text
293
Full text
313
Full text
53
Full text
64
Full text
95
Full text
58
Full text
259
Full text
291
114
Giniewski v. France
64016/00
134
Elenkov v. Bulgaria
7
Kingdom
14
24348/94
109
Grinberg v. Russia
23472/03
15
Guerra v. Italy
14967/89
141
Guja v. Moldova
14277/04
132
Hachette
Filipacchi 71111/01
Associés v. France
44
20
United Kingdom
25181/94
110
IA v. Turkey
42571/98
31/01/ V
2006
2007
13
27/03/ V
1996
whistle-blowing
25/11/ V
1997
criticism, insult
21/07/ V
2005
19/02/ NV10 Right to receive information, positive
1998
; V8
12/02/ V
2008
14/06/ NV
2007
25/11/ V
1999
25/08/ V
1998
freedom
13/09/ NV
2005
347
Full text
153
Full text
188
Full text
35
Full text
44
Full text
144
Full text
44
Full text
198
Full text
184
Full text
62
Full text
50
Full text
146
59
165
18
108
24
28635/95,
30171/96
and
34535/97
Finland
Incal v. Turkey
10/10/ V
2000
Full text
75
06/04/ V
2010
09/06/ V
1998
Full text
242
Full text
47
Independent News
Media v. Ireland
Janowski v. Poland
16/06/ NV
2005
21/01/ NV
1999
20/04/ I
2010
or value judgments
Full text
142
Full text
54
Full text
246
Full text
30
Full text
77
Full text
242
Full text
106
Full text
58
Jean-Marie
France
2
Jersild v. Denmark
15890/89
61
26958/95
164
Finland
Karakoç & others v. 27692/95,
Turkey
28138/95
and
28498/95
Karataş v. Turkey
23168/94
30
Pen
25716/94
169
85
Le
and 55120/00
v. 18788/09
23/09/
1994
27/02/
2001
06/04/
2010
15/10/
2002
V
V
V
V
08/07/ V
1999
348
97
Karkin v. Turkey
43928/98
184
1685/10
153
Kenedi v. Hungary
31475/05
148
Khurshid
Mustafa
& 23883/06
98
27528/95
123
Klein v. Slovakia
72208/01
74
Co. KG v. Austria
161
Laranjeira Marques
Silva v. Portugal
124
Revue v. Belgium
Lehideux & Isorni v. 24662/94
France
21
da 16983/06
146
Leroy v. France
36109/03
133
1131/05
23/09/ V
2003
10/05/ I
2011
expression
26/05/ V 10, Access to information, public or official
2009
6, 13
16/12/ V
2008
interference
02/10/ V
2003
31/10/ V
2006
26/02/ V
2002
privacy
19/01/ V
2010
interest
Full text
125
Full text
277
Full text
220
Full text
211
Full text
126
Full text
169
Full text
92
Full text
238
09/11/ NV
2006
23/09/ V
1998
Full text
170
Full text
50
Full text
207
Full text
186
02/10/ NV
2008
activism, cartoon
349
2007
6
56
Portugal
28/09/ V
2000
126
Mamère v. France
12697/03
07/11/ V
2006
156
Manole &
Moldova
v. 13936/02
17/09/ V
2009
69
32686/96
19/04/ V
2001
120
19101/03
10/07/ I
2006
78
Kingdom
02/05/ NV
2002
17/06/ V
2008
207
(dec.)
21/05/ I
2013
177
MGN Ltd.
Kingdom
18/01/ V
2011
143
others
v.
United 39401/04
of others
licencing procedure
350
Full text
71
Full text
174
Full text
226
Full text
88
Full text
163
Full text
99
Full text
201
Full text
321
Full text
264
121
181
Mosley v.
Kingdom
195
v. Switzerland
13/07/ NV
2012
95
Murphy v. Ireland
99
10/07/ NV
2003
04/12/ V
2003
209
Nagla v. Latvia
200
Nenkova-Lalova
v. 35745/05
Bulgaria
Austria
11/12/ NV
2012
11/01/ V
2000
128
22/02/ V
2007
77
Nikula v. Finland
21/03/ V
2002
47
the
73604/01
United 48009/08
44179/98
73469/10
31611/96
21/09/ V
2006
10/05/ NV 8
2011
16/07/ V
2013
351
interest, positive obligations, antiSemitism, politically engaged journalism,
sanction
interest
Full text
165
Full text
271
Full text
297
Full text
123
Full text
127
Full text
325
Full text
307
Full text
63
Full text
177
Full text
97
43
Nilsen &
Norway
113
Denmark
Nur Radyo v. Turkey
6587/03
137
176
10
Johnsen
v. 23118/93
Nur Radyo Ve Televizyon 42284/05
(No. 2)
Austria
25/11/ V
1999
08/12/ NV
2005
27/11/ V
2007
12/10/ V
2010
01/07/ V
1997
33
103
v. Austria
25/05/ I
2004
127
Österreichischer
35841/02
v. Austria
Otegi Mondragon v. Spain 2034/07
07/12/ V
2006
Austria
20/09/ NV
1994
179
1
24246/94
lawyer
law, positive obligations
08/07/ V
1999
15/03/ V
2011
352
Full text
61
Full text
151
Full text
194
Full text
263
Full text
40
Full text
58
Full text
133
Full text
176
Full text
267
Full text
29
49
23144/93
16/03/ V
2000
115
30/03/ V
2006
138
64178/00,
64179/00,
64181/00,
64183/00,
64184/00
11369/03
41
Öztürk v. Turkey
22479/93
28/09/ V
1999
158
Pasko v. Russia
69519/01
91
Peck v.
Kingdom
22/10/ NV
2009
28/01/ V 8
2003
94
Denmark
19/06/ NV
2003
10, 6
105
Denmark
[Grand
Chamber]
Perna v. Italy
48898/99
17/12/ NV
2004
67
93
145
the
United 44647/98
Perna v. Italy [Grand 48898/99
Chamber]
Petrina v. Romania
78060/01
04/12/ V
2007
25/07/ V
2001
06/05/ NV
2003
14/10/ V 8
353
human rights
order
Full text
64
Full text
155
order
reporting
Full text
194
Full text
59
Full text
231
Full text
116
Full text
122
Full text
136
Full text
85
Full text
120
Full text
205
2008
18/05/ V
2004
104
Plon v. France
56148/00
28
Polat v. Turkey
23500/94
5
Austria
26/04/ NV
1995
12
19736/92
101
53984/00
20/10/ V
1997
30/03/ NV
2004
125
62202/00
19/12/ V
2006
26
25390/94
168
Renaud v. France
13290/07
20/05/ NV
1999
25/02/ V
2010
197
28/06/ V
2012
90
Roemen & Schmit
Luxembourg
RTBF v. Belgium
25/02/ V
2003
29/03/ V
180
15054/07
and
15066/07
v. 51772/99
50084/06
libel, reputation
of others
reputation
provocation
08/07/ V
1999
354
Full text
135
Full text
58
Full text
33
Full text
43
Full text
129
Full text
172
Full text
56
Full text
244
Full text
301
Full text
114
Full text
269
2011
205
Saint-Paul
Luxembourg 26419/10
S.A. v. Luxembourg
18/04/ V
2013
174
Sanoma
v.
The 38224/03
Netherlands
25405/94
14/09/ V
2010
20/05/ NV
1998
196
Schweizerische
Radio- 34124/06
SRG v. Switzerland
21/06/ V
2012
82
33179/96
09/07/ V
2002
54
Sener v. Turkey
26680/95
18/07/ V
2000
182
Ltd. V. Cyprus
and
35122/05
21/07/ NV
2011
10, 14
183
Sipoş v. Romania
26125/04
03/05/ V 8
2011
166
Soila v. Finland
6806/06
83
Stambuk v. Germany
37928/97
06/04/ V
2010
17/10/ V
2002
17
355
proportionality
interest
security
receive information
discrimination
criminal sanctions
Full text
317
Full text
257
Full text
46
Full text
299
Full text
103
Full text
70
Full text
273
Full text
275
Full text
242
Full text
104
186
107
United Kingdom
United Kingdom
22
116
136
Stoll
v.
[Grand Chamber]
35
Sürek &
Turkey
36
26682/95
37
24122/94
38
24735/94
39
24762/94
Özdemir
69698/01
v. 23927/94
and
24277/94
interest
10/01/ V
2012
defamation, libel
2005
6
23/09/ V
1998
others
25/04/ V
2006
ethics
10/12/ NV
2007
ethics
08/07/ V
1999
08/07/ NV
Idem.
1999
08/07/ V
Idem.
1999
08/07/ NV
Idem.
1999
08/07/ V
Idem.
1999
356
Full text
281
Full text
140
Full text
51
Full text
157
Full text
192
Full text
58
Full text
58
Full text
58
Full text
58
Full text
58
198
Szima v. Hungary
29723/11
45
T. v. the United Kingdom
24724/94
60
Tammer v. Estonia
41205/98
152
TASZ v. Hungary
37374/05
118
Tatlav v. Turkey
50692/99
55
68
Tele 1
32240/96
MBH v. Austria
Telegraaf
Media 39315/06
Nederland
Landelijke
the Netherlands
Thoma v. Luxembourg
38432/97
140
Tillack v. Belgium
149
Kingdom
23676/03
6
United Kingdom
199
129
20477/05
09/10/
2012
16/12/
1999
06/02/
2001
14/04/
2009
NV
V6
NV
V
02/02/ V
2006
2000
NV
the media
22/11/ V
2012
review
29/03/ V
2001
27/11/ V
2007
10/03/ NV
2009
archives
13/07/ V
1995
01/03/ V
2007
357
Full text
303
Full text
62
Full text
76
Full text
218
Full text
160
Full text
71
Full text
305
Full text
87
Full text
196
Full text
213
Full text
34
Full text
178
112
France
24/11/ NV
2005
167
Tuomela & others
Finland
Tusalp v. Turkey
06/04/ V
2010
21/02/ V
2012
189
v. 25711/04
32131/08
and
41617/08
147
11/12/ V
2008
72
Unabhängige
Initiative 28525/95
v.
Austria
14526/07,
14747/07,
15022/07,
15737/07,
36137/07,
47245/07,
50371/07,
50372/07
and
54637/07
26/02/ V
2002
159
46
191
3
Sweden
Vereiniging
Weekblad 16616/90
factual allegations
innocence
appreciation
pluralism
Full text
149
Full text
242
Full text
285
Full text
209
Full text
92
20/10/ V
2009
watchdog
Full text
233
16/12/ V 6
1999
09/02/ NV
2012
09/02/ V
Full text
62
Full text
289
Full text
31
358
4
157
64
102
188
Vereinigung
Austria
VgT Vereinigung gegen
Tierfabriken
v.
Switzerland
(No.
2)
[Grand Chamber]
VgT Vereinigung Tegen
Tierfabriken
v.
Switzerland
Von Hannover v. Germany
1995
19/12/ V
1994
32772/02
30/06/ V
2009
24699/94
28/06/ V
2001
59320/00
24/06/ V 8
2004
15153/89
(No. 2)
and
60614/08
(No. 3)
07/02/ NV 8
2012
139
Voskuil
Netherlands
22/11/ V
2007
210
Węgrzynowski
and 33846/07
16/07/ NV
2013
10, 8
122
White v. Sweden
19/09/ NV 8
2006
211
v.
The 64752/01
42435/02
19/09/ NV 8
2013
359
Full text
32
Full text
228
human rights
Privacy in public areas, public interest,
rights
public watchdog
Full text
81
Full text
131
Full text
283
Full text
329
Full text
196
Full text
327
Full text
167
42
80
United Kingdom
30671/96
and
30678/96
Kingdom
02/07/ V 11
2002
58547/00
27/10/ V
2005
155
Wirtschafts-Trend
GmbH v. Austria
20436/02
16/07/ V
2009
11
Worm v. Austria
22714/93
29/08/ NV
1997
81
29590/96
04/06/ V
2002
87
28493/95
05/12/ V
2002
142
(No. 3)
Yleisradio Oy & others v. 30881/09
Finland
8
111
178
28396/95
28/10/ V
1999
25/11/ NV
1996
appreciation
or religion
security
obligation
22/04/ V
2008
08/02/ NV
2011
360
Full text
61
Full text
101
Full text
37
Full text
147
Full text
224
Full text
41
Full text
103
Full text
110
Full text
200
Full text
266
208
Youth
Initiative
for 48135/06
25/06/ V
2013
13
Zana v. Turkey
25/11/ NV
1997
18954/91
public watchdog
violence, terrorism
361
Full text
323
Full text
44
Appendix III: Overview of cases by country.
Case Summaries
143
207
50
Appn. No. Date
Outcome
Armenia
17/06/ V
2008
(dec.)
21/05/ I
2013
Austria
&
others
24773/94
v. 29271/95
21/03/ NV
2000
26/02/ V
2002
73
Dichand
Austria
61
74
Co. KG v. Austria
27/02/ V
2001
26/02/ V
2002
128
22/02/ V
2007
47
Austria
11/01/ V
2000
10
01/07/ V
26958/95
362
Keywords
HUDOC Page
licencing procedure
Full text
201
Full text
321
judgments
or value judgments
privacy
interest
Full text
65
Full text
92
Full text
77
Full text
92
Full text
177
Full text
63
Full text
40
Austria
1997
103
v. Austria
127
Österreichischer
35841/02
v. Austria
Austria
1
5
Austria
12
186
55
Tele 1
MBH v. Austria
Unabhängige
Initiative
v.
Austria
Vereinigung
Austria
Wirtschafts-Trend
GmbH v. Austria
72
4
111
19736/92
32240/96
28525/95
25/05/ I
2004
07/12/ V
2006
20/09/ NV
1994
26/04/ NV
1995
reputation
20/10/ V
1997
10/01/ V
2012
defamation, libel
2000
NV
the media
26/02/ V
2002
Full text
133
Full text
176
Full text
29
Full text
33
Full text
43
Full text
281
Full text
71
Full text
92
15153/89
19/12/ V
1994
Full text
32
58547/00
27/10/ V
2005
Full text
147
363
11
Worm v. Austria
22714/93
29/08/ NV
1997
Full text
41
171
Azerbaijan
40984/07
22/04/ V
2010
prison
Full text
250
12/12/ I
2001
Full text
89
Full text
39
Full text
124
Full text
222
Full text
170
Full text
269
Full text
196
70
Belgium
Bankovic & others
Belgium & others
v. 52207/99
9
Belgium
96
33400/96
154
Féret v. Belgium
15615/07
124
180
Revue v. Belgium
RTBF v. Belgium
50084/06
140
Tillack v. Belgium
20477/05
24/02/ V
1997
2003
8
16/07/ NV
2009
expression, election campaign, public
debate
09/11/ NV
2006
29/03/ V
2011
27/11/ V
2007
Bulgaria
364
134
Elenkov v. Bulgaria
200
Nenkova-Lalova
v. 35745/05
Bulgaria
Cyprus
Ltd. V. Cyprus
and
35122/05
182
2007
13
11/12/ NV
2012
sanction
Full text
188
Full text
307
21/07/ NV
2011
10, 14
discrimination
Full text
273
120
Czech Republic
19101/03
10/07/ I
2006
Full text
163
2
Denmark
Jersild v. Denmark
15890/89
23/09/
1994
08/12/
2005
19/06/
2003
Full text
30
Full text
151
Full text
122
Full text
136
06/02/ NV
2001
Full text
76
06/04/ V
2010
Full text
242
113
94
105
60
163
Denmark
Denmark
Denmark
[Grand
Chamber]
Estonia
Tammer v. Estonia
41205/98
Finland
Flinkkilä
Finland
&
others
v. 25576/04
V
NV
NV
10, 6
17/12/ NV
2004
365
165
184
Finland
Finland
1685/10
06/04/ V
2010
06/04/ V
2010
10/05/ I
2011
77
Nikula v. Finland
31611/96
21/03/ V
2002
166
Soila v. Finland
6806/06
167
Tuomela & others v. 25711/04
Finland
Yleisradio Oy & others v. 30881/09
Finland
France
France
06/04/ V
2010
06/04/ V
2010
08/02/ NV
2011
164
178
202
10/01/ NV
2013
79
France
25/06/ V
2002
131
Dupuis & others v. France
1914/02
07/06/ V
2007
57
Du Roy & Malaurie
34000/96
03/10/ V
2000
65
17/07/ V
2001
366
expression
lawyer
Full text
242
Full text
242
Full text
277
Full text
97
Full text
242
Full text
242
Full text
266
function of press
on foreign origin
Full text
311
Full text
100
Full text
182
Full text
73
Full text
83
204
Eon v. France
26118/10
14/03/ V
2013
23
Fressoz & Roire v. France
29183/95
21/01/ V
1999
114
Giniewski v. France
64016/00
132
Hachette
Filipacchi 71111/01
Associés v. France
31/01/ V
2006
14/06/ NV
2007
169
Jean-Marie
France
21
Lehideux
France
146
Leroy v. France
36109/03
02/10/ NV
2008
126
Mamère v. France
12697/03
07/11/ V
2006
104
Plon v. France
56148/00
18/05/ V
2004
101
53984/00
30/03/ NV
2004
Le
&
Pen
v. 18788/09
20/04/ I
2010
Isorni
v. 24662/94
23/09/ V
1998
367
Full text
315
Full text
53
activism, cartoon
of others
provocation
Full text
153
Full text
184
Full text
246
Full text
50
Full text
207
Full text
174
Full text
135
Full text
129
168
Renaud v. France
197
112
13290/07
25/02/ V
2010
15054/07
and
15066/07
France
28/06/ V
2012
24/11/ NV
2005
83
Germany
Axel Springer AG
Germany
Stambuk v. Germany
102
24/06/ V8
2004
188
(No. 2)
and
60614/08
(No. 3)
07/02/ NV 8
2012
187
211
v. 39954/08
37928/97
162
Greece
49330/0
14
24348/94
133
1131/05
07/02/ V
2012
17/10/ V
2002
19/09/ NV 8
2013
11/02/ V
2010
innocence
Full text
244
Full text
301
Full text
149
interest
human rights
Privacy in public areas, public interest,
rights
Full text
283
Full text
104
Full text
131
Full text
283
Full text
329
Full text
240
Full text
44
Full text
186
value judgments
25/11/ V
1997
criticism, insult
368
153
Hungary
Kenedi v. Hungary
31475/05
26
25390/94
198
Szima v. Hungary
29723/11
152
TASZ v. Hungary
37374/05
95
Ireland
Independent News
Media v. Ireland
Murphy v. Ireland
212
Italy
Belpietro v. Italy
108
and 55120/00
44179/98
43612/10
194
Di Stefano v. Italy
92
150
2)
and
45649/99
Faccio v. Italy
33/04
15
Guerra v. Italy
14967/89
2007
6
26/05/
2009
20/05/
1999
09/10/
2012
14/04/
2009
V 10, Access to information, public or official
6, 13
NV
NV
V
16/06/ NV
2005
10/07/ NV
2003
24/09/ V
2013
07/06/ V 10; Dominant position over the audiovisual
2012
1(1)
30/01/ V 6
2003
31/03/ IA
2009
19/02/ NV10
369
Right to receive information, positive
Full text
220
Full text
56
Full text
303
Full text
218
Full text
142
Full text
123
Full text
330
Full text
295
Full text: 118
No. 1
No. 2
Full text 215
Full text
44
67
Perna v. Italy
93
209
Perna v. Italy
Chamber]
Latvia
Nagla v. Latvia
42
Liechtenstein
90
205
68
1998
; V8
25/07/ V
2001
06/05/ NV
2003
73469/10
16/07/ V
2013
28396/95
48898/99
[Grand 48898/99
Luxembourg
Roemen & Schmit v. 51772/99
Luxembourg
Saint-Paul
Luxembourg 26419/10
S.A. v. Luxembourg
Thoma v. Luxembourg
38432/97
144
Moldova
Moldova
22824/04
141
Guja v. Moldova
185
14277/04
Full text
85
Full text
120
Full text
325
28/10/ V
1999
appreciation
Full text
61
25/02/ V
2003
18/04/ V
2013
proportionality
Full text
114
Full text
317
Full text
87
video , journalism
Full text
279
Full text
203
Full text
198
29/03/ V
2001
05/07/ V 8
2011
29/07/ NV
2008
12/02/ V
2008
370
156
174
199
3
139
151
Manole &
Moldova
others
v. 13936/02
The Netherlands
Sanoma
v.
The
Netherlands
Telegraaf
Media
Nederland
Landelijke
the Netherlands
Vereiniging
Weekblad
Voskuil
v.
The
Netherlands
Norway
A. v. Norway
38224/03
39315/06
16616/90
64752/01
28070/06
Tidende
17/09/ V
2009
14/09/ V
2010
22/11/ V
2012
09/02/ V
1995
22/11/ V
2007
09/04/ V 8
2009
51
Bergens
Norway
v. 26132/95
02/05/ V
2000
25
v. Norway
20/05/ V
1999
43
Nilsen
25/11/ V
&
Johnsen
v. 23118/93
371
Full text
226
review
public watchdog
Full text
257
Full text
305
Full text
31
Full text
196
minors
public watchdog
watchdog
Full text
216
Full text
66
Full text
55
Full text
61
Norway
1999
129
01/03/ V
2007
147
11/12/ V
2008
76
Poland
Gaweda v. Poland
26229/95
24
Janowski v. Poland
25716/94
210
Węgrzynowski
and 33846/07
155
130
161
56
20436/02
Portugal
Portugal
and
11319/03
Laranjeira Marques da 16983/06
Silva v. Portugal
Portugal
factual allegations
pluralism
Full text
178
Full text
209
Full text
95
Full text
54
Full text
327
Full text
224
26/04/ V
2007
journalistic ethics
Full text
180
19/01/ V
2010
interest
Full text
238
28/09/ V
2000
Full text
71
14/03/
2002
21/01/
1999
16/07/
2013
V
NV
NV
10, 8
16/07/ V
2009
Romania
372
172
19452/02
53
Constantinescu
Romania
106
Romania
40
Dalban v. Romania
193
Romania
145
Petrina v. Romania
78060/01
183
Sipoş v. Romania
26125/04
135
Russia
Filatenko v. Russia
73219/01
109
Grinberg v. Russia
23472/03
158
Pasko v. Russia
69519/01
v. 28871/95
28114/95
2010
6
good faith
27/06/ NV
2000
reputation
17/12/ V
2004
28/09/ V
1999
10/05/ V
2012
pluralism
14/10/ V 8
2008
libel, reputation
03/05/ V 8
2011
criminal sanctions
Full text
253
Full text
68
Full text
138
Full text
59
Full text
293
Full text
205
Full text
275
06/12/ V
2007
21/07/ V
2005
Full text
190
Full text
144
Full text
231
22/10/ NV
2009
373
208
Serbia
Youth
Initiative
for 48135/06
25/06/ V
2013
public watchdog
Full text
323
66
Slovakia
Feldek v. Slovakia
29032/95
12/07/ V
2001
Full text
84
123
Klein v. Slovakia
72208/01
169
32686/96
Full text
88
125
62202/00
19/12/ V
2006
of others
Full text
69
31/10/ V
2006
19/04/ V
2001
Full text
172
75
Spain
46833/99
14/03/ NV
2002
Full text
94
48
39293/98
29/02/ V
2000
Full text
64
179
Otegi Mondragon v. Spain
2034/07
15/03/ V
2011
employment relation
Full text
267
203
Sweden
Frederik Neij
Copyright, The Pirate Bay, Internet file-
Full text
313
& Peter 40397/12
19/02/ I
374
(dec.)
Gillberg v. Sweden
41723/06
2013
192
Chamber]
03/04/ NV
2012
148
Khurshid
Mustafa
16/12/ V
2008
191
122
Sweden
White v. Sweden
42435/02
117
Switzerland
77551/01
25/04/ V
2006
86
38743/97
20
25181/94
05/11/ NV
2002
25/08/ V
1998
121
73604/01
175
& 23883/06
02/11/ NV
2010
10, 8
09/02/ NV
2012
19/09/ NV 8
2006
sharing service, illegal use of copyrightprotected music, conviction, margin of
appreciation
interference
freedom
interest, positive obligations, anti-
21/09/ V
2006
375
Full text
259
Full text
291
Full text
211
Full text
289
Full text
167
Full text
159
Full text
108
Full text
50
Full text
165
195
v. Switzerland
13/07/ NV
2012
17
20/05/ NV
1998
196
Schweizerische
Radio- 34124/06
SRG v. Switzerland
21/06/ V
2012
116
25/04/ V
2006
136
Stoll
v.
[Grand Chamber]
10/12/ NV
2007
64
VgT Vereinigung Tegen 24699/94
Tierfabriken
v.
Switzerland
VgT Vereinigung gegen 32772/02
Tierfabriken
v.
Switzerland
(No.
2)
[Grand Chamber]
Turkey
Abdullah Aydin v. Turkey 42435/98
28/06/ V
2001
157
100
25405/94
69698/01
Semitism, politically engaged journalism,
interest
ethics
ethics
30/06/ V
2009
09/03/ V
2004
differences
376
Full text
297
Full text
46
Full text
299
Full text
157
Full text
192
Full text
81
Full text
228
Full text
128
201
Ahmet Yildirim v. Turkey
3111/10
18/12/ V
2012
170
Akdas v. Turkey
41056/04
16/02/ V
2010
58
Akkoç v. Turkey
10/10/ NV
2000
173
Aksu v. Turkey
22947/93
and
22948/93
4149/04
and
41029/04
190
Chamber]
and
41029/04
15/03/ NV 8
2012
27
Arslan v. Turkey
23462/94
08/07/ V
1999
84
24914/94
15/10/ V
2002
29
Turkey
and
24408/94
08/07/ V
1999
27/07/ NV
2010
14, 8
377
prescribed by law
privacy
privacy
Political expression, terrorism, incitement
obligation
Full text
309
Full text
248
Full text
75
Full text
255
Full text
287
Full text
58
Full text
106
Full text
58
32
Ceylan v. Turkey
23556/94
63
Cyprus v. Turkey
25781/94
88
71
Turkey
E.K. v. Turkey
28496/95
119
Erbakan v. Turkey
31
Erdoğdu
Turkey
52
and
İnce
59405/00
Idem.
08/07/ V
1999
10/05/ V
2001
10/12/ V
2002
07/02/ V
2002
06/07/ V
2006
v. 25067/94
and
25068/94
08/07/ V
1999
Erdogdu v. Turkey
25723/94
15/06/ V
2000
34
Gerger v. Turkey
24919/94
08/07/ V
1999
110
IA v. Turkey
42571/98
13/09/ NV
2005
378
Full text
58
obligation
Full text
80
Full text
110
disorder or crime
Full text
90
Full text
161
Full text
58
Full text
68
Full text
58
Full text
146
59
18
Incal v. Turkey
85
Karakoç
Turkey
30
&
28635/95,
30171/96
and
34535/97
10/10/ V
2000
09/06/ V
1998
others
15/10/ V
2002
Karataş v. Turkey
v. 27692/95,
28138/95
and
28498/95
23168/94
97
Karkin v. Turkey
43928/98
98
27528/95
23/09/ V
2003
02/10/ V
2003
99
04/12/ V
2003
137
Nur Radyo v. Turkey
176
Nur Radyo Ve Televizyon 42284/05
27/11/ V
2007
12/10/ V
2010
6587/03
08/07/ V
1999
379
Full text
75
Full text
47
Full text
106
law, positive obligations,
Full text
58
Full text
125
Full text
126
Full text
127
Full text
194
Full text
263
33
(No. 2)
24246/94
08/07/ V
1999
49
23144/93
16/03/ V
2000
115
30/03/ V
2006
138
64178/00,
64179/00,
64181/00,
64183/00,
64184/00
11369/03
41
Öztürk v. Turkey
22479/93
28/09/ V
1999
28
Polat v. Turkey
23500/94
08/07/ V
1999
82
33179/96
09/07/ V
2002
04/12/ V
2007
380
human rights
order
Full text
58
Full text
64
Full text
155
order
security
Full text
194
Full text
59
Full text
58
Full text
103
54
Sener v. Turkey
35
Sürek &
Turkey
36
26682/95
37
24122/94
38
24735/94
39
24762/94
118
Tatlav v. Turkey
50692/99
189
Tusalp v. Turkey
32131/08
and
41617/08
159
14526/07,
14747/07,
15022/07,
15737/07,
36137/07,
47245/07,
50371/07,
50372/07
and
Özdemir
26680/95
18/07/ V
2000
v. 23927/94
and
24277/94
08/07/ V
1999
08/07/
1999
08/07/
1999
08/07/
1999
08/07/
1999
02/02/
2006
21/02/
2012
Full text
70
Full text
58
NV
receive information
Idem.
Full text
58
V
Idem.
Full text
58
NV
Idem.
Full text
58
V
Idem.
Full text
58
V
appreciation
watchdog
Full text
160
Full text
285
Full text
233
V
20/10/ V
2009
381
81
54637/07
29590/96
87
28493/95
142
13
(No. 3)
Zana v. Turkey
18954/91
89
The United Kingdom
A. v. the United Kingdom
19
206
62
16
160
7
44
Ahmed & others v. the
United Kingdom
Animal
Defenders
Kingdom
[Grand
Chamber]
B. & P. v. the United
Kingdom
35373/97
22954/93
48876/08
04/06/ V
2002
05/12/ V
2002
22/04/ V
2008
25/11/ NV
1997
17/12/ NV 6,
2002
8, 13,
14
02/09/ NV
1998
22/04/ NV
2013
36337/97
and
35974/97
Kingdom
Kingdom
24/04/ NV
2001
25/11/ V
19/02/ V
1998
15/12/ V
2009
27/03/ V
1996
382
security
obligation
violence, terrorism
Full text
103
Full text
110
Full text
200
Full text
44
Political expression, right of access,
defamation, discrimination, privacy
Full text
112
necessity
Full text
49
Full text
319
Full text
79
whistle-blowing
Full text
45
Full text
235
Full text
35
Full text
62
78
177
181
United Kingdom
Kingdom
MGN Ltd. v. United 39401/04
Kingdom
Mosley v. the United 48009/08
Kingdom
91
Peck v.
Kingdom
107
United Kingdom
United Kingdom
22
the
United 44647/98
45
T. v. the United Kingdom
149
23676/03
Kingdom
6
United Kingdom
46
80
8
24724/94
United Kingdom
30671/96
and
30678/96
1999
02/05/ NV
2002
18/01/ V
2011
10/05/ NV 8
2011
28/01/ V 8
2003
reporting
2005
6
23/09/ V
1998
others
16/12/ V 6
1999
10/03/ NV
2009
archives
13/07/ V
1995
16/12/ V 6
1999
02/07/ V 11
2002
25/11/ NV
383
Full text
99
Full text
264
Full text
271
Full text
116
Full text
140
Full text
51
Full text
62
Full text
213
Full text
34
Full text
62
Full text
101
Full text
37
Kingdom
1996
or religion
384
European Treaty Series - No. 5
Convention for the Protection
of Human Rights
and Fundamental Freedoms,
as amended by Protocols No. 11 and 14
Rome, 4.XI.1950
Text amended by the provisions of Protocol No. 14 (CETS No. 194) as from the date of its entry into force on 1 June 2010.
The text of the Convention had been previously amended according to the provisions of Protocol No. 3 (ETS No. 45), which
entered into force on 21 September 1970, of Protocol No. 5 (ETS No. 55), which entered into force on 20 December 1971 and of
385
Protocol No. 8 (ETS No. 118), which entered into force on 1 January 1990, and comprised also the text of Protocol No. 2 (ETS No.
44) which, in accordance with Article 5, paragraph 3 thereof, had been an integral part of the Convention since its entry into
force on 21 September 1970. All provisions which had been amended or added by these Protocols were replaced by Protocol
No. 11 (ETS No. 155), as from the date of its entry into force on 1 November 1998. As from that date, Protocol No. 9 (ETS No.
140), which entered into force on 1 October 1994, was repealed and Protocol No. 10 (ETS no. 146) had lost its purpose.
386
The governments signatory hereto, being members of the Council of Europe,
Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of
the United Nations on 10th December 1948;
Considering that this Declaration aims at securing the universal and effective recognition and
observance of the Rights therein declared;
Considering that the aim of the Council of Europe is the achievement of greater unity between its
members and that one of the methods by which that aim is to be pursued is the maintenance and
further realisation of human rights and fundamental freedoms;
Reaffirming their profound belief in those fundamental freedoms which are the foundation of
justice and peace in the world and are best maintained on the one hand by an effective political
democracy and on the other by a common understanding and observance of the human rights
upon which they depend;
Being resolved, as the governments of European countries which are like-minded and have a
common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps
for the collective enforcement of certain of the rights stated in the Universal Declaration,
Have agreed as follows:
Article 1 – Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention.
Section I – Rights and freedoms
Article 2 – Right to life
1
Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.
2
Deprivation of life shall not be regarded as inflicted in contravention of this article when it results
from the use of force which is no more than absolutely necessary:
a
in defence of any person from unlawful violence;
b
in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c
in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 3 – Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 4 – Prohibition of slavery and forced labour
387
1
No one shall be held in slavery or servitude.
2
No one shall be required to perform forced or compulsory labour.
3
For the purpose of this article the term “forced or compulsory labour” shall not include:
a
any work required to be done in the ordinary course of detention imposed according to the
provisions of Article 5 of this Convention or during conditional release from such detention;
b
any service of a military character or, in case of conscientious objectors in countries where
they are recognised, service exacted instead of compulsory military service;
c
any service exacted in case of an emergency or calamity threatening the life or well-being of
the community;
d
any work or service which forms part of normal civic obligations.
Article 5 – Right to liberty and security
1
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law:
a
the lawful detention of a person after conviction by a competent court;
b
the lawful arrest or detention of a person for non- compliance with the lawful order of a
court or in order to secure the fulfilment of any obligation prescribed by law;
c
the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when
it is reasonably considered necessary to prevent his committing an offence or fleeing after
having done so;
d
the detention of a minor by lawful order for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the competent legal authority;
e
the lawful detention of persons for the prevention of the spreading of infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants;
f
the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into
the country or of a person against whom action is being taken with a view to deportation or
extradition.
2
Everyone who is arrested shall be informed promptly, in a language which he understands, of the
reasons for his arrest and of any charge against him.
3
Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article
shall be brought promptly before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings
388
by which the lawfulness of his detention shall be decided speedily by a court and his release
ordered if the detention is not lawful.
Everyone who has been the victim of arrest or detention in contravention of the provisions of this
5
article shall have an enforceable right to compensation.
Article 6 – Right to a fair trial
1
In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests of morals, public order or
national security in a democratic society, where the interests of juveniles or the protection of the
private life of the parties so require, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice.
2
Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.
3
Everyone charged with a criminal offence has the following minimum rights:
a
to be informed promptly, in a language which he understands and in detail, of the nature
and cause of the accusation against him;
b
to have adequate time and facilities for the preparation of his defence;
c
to defend himself in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the interests of justice so
require;
d
to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
e
to have the free assistance of an interpreter if he cannot understand or speak the language
used in court.
Article 7 – No punishment without law
1
No one shall be held guilty of any criminal offence on account of any act or omission which did
not constitute a criminal offence under national or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time
the criminal offence was committed.
2
This article shall not prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognised by civilised nations.
Article 8 – Right to respect for private and family life
1
Everyone has the right to respect for his private and family life, his home and his correspondence.
389
2
There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others.
Article 9 – Freedom of thought, conscience and religion
1
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom
to change his religion or belief and freedom, either alone or in community with others and in
public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of public safety, for
the protection of public order, health or morals, or for the protection of the rights and freedoms of
others.
Article 10 – Freedom of expression
1
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and
regardless of frontiers. This article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in
a democratic society, in the interests of national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.
Article 11 – Freedom of assembly and association
1
Everyone has the right to freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his interests.
2
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by
law and are necessary in a democratic society in the interests of national security or public safety,
for the prevention of disorder or crime, for the protection of health or morals or for the protection
of the rights and freedoms of others. This article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of the armed forces, of the police or of the
administration of the State.
Article 12 – Right to marry
Men and women of marriageable age have the right to marry and to found a family, according to
the national laws governing the exercise of this right.
Article 13 – Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an
390
effective remedy before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.
Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other
status.
Article 15 – Derogation in time of emergency
1
In time of war or other public emergency threatening the life of the nation any High Contracting
Party may take measures derogating from its obligations under this Convention to the extent
strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law.
2
No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or
from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3
Any High Contracting Party availing itself of this right of derogation shall keep the Secretary
General of the Council of Europe fully informed of the measures which it has taken and the
reasons therefor. It shall also inform the Secretary General of the Council of Europe when such
measures have ceased to operate and the provisions of the Convention are again being fully
executed.
Article 16 – Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties
from imposing restrictions on the political activity of aliens.
Article 17 – Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any
right to engage in any activity or perform any act aimed at the destruction of any of the rights and
freedoms set forth herein or at their limitation to a greater extent than is provided for in the
Convention.
Article 18 – Limitation on use of restrictions on rights
The restrictions permitted under this Convention to the said rights and freedoms shall not be
applied for any purpose other than those for which they have been prescribed.
Section II – European Court of Human Rights
Article 19 – Establishment of the Court
To ensure the observance of the engagements undertaken by the High Contracting Parties in the
Convention and the Protocols thereto, there shall be set up a European Court of Human Rights,
hereinafter referred to as "the Court". It shall function on a permanent basis.
391
Article 20 – Number of judges
The Court shall consist of a number of judges equal to that of the High Contracting Parties.
Article 21 – Criteria for office
1
The judges shall be of high moral character and must either possess the qualifications required for
appointment to high judicial office or be jurisconsults of recognised competence.
2
The judges shall sit on the Court in their individual capacity.
3
During their term of office the judges shall not engage in any activity which is incompatible with
their independence, impartiality or with the demands of a full-time office; all questions arising
from the application of this paragraph shall be decided by the Court.
Article 22 – Election of judges 2
The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting
Party by a majority of votes cast from a list of three candidates nominated by the High
Contracting Party.
Article 23 – Terms of office and dismissal 3
1
The judges shall be elected for a period of nine years. They may not be re-elected.
2
The terms of office of judges shall expire when they reach the age of 70.
3
The judges shall hold office until replaced. They shall, however, continue to deal with such cases
as they already have under consideration.
4
No judge may be dismissed from office unless the other judges decide by a majority of two-thirds
that that judge has ceased to fulfil the required conditions.
Article 24 – Registry and rapporteurs 2
1
The Court shall have a registry, the functions and organisation of which shall be laid down in the
rules of the Court.
2
When sitting in a single-judge formation, the Court shall be assisted by rapporteurs who shall
function under the authority of the President of the Court. They shall form part of the Court’s
registry.
Article 25 – Plenary Court 4
2
Text amended according to the provisions of Protocol No. 14 (CETS No. 194).
3
Article renumbered, heading and text amended according to the provisions of Protocol No. 14 (CETS No. 194).
4 Article renumbered, heading and text amended according to the provisions of Protocol No. 14 (CETS No. 194).
392
The plenary Court shall
a
elect its President and one or two Vice-Presidents for a period of three years; they may be reelected;
b
set up Chambers, constituted for a fixed period of time;
c
elect the Presidents of the Chambers of the Court; they may be re-elected;
d
adopt the rules of the Court;
e
elect the Registrar and one or more Deputy Registrars;
f
make any request under Article 26, paragraph 2.
Article 26 – Single-judge formation, committees, Chambers and Grand Chamber 1
1
To consider cases brought before it, the Court shall sit in a single-judge formation, in committees
of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges. The
Court’s Chambers shall set up committees for a fixed period of time.
2
At the request of the plenary Court, the Committee of Ministers may, by a unanimous decision
and for a fixed period, reduce to five the number of judges of the Chambers.
3
When sitting as a single judge, a judge shall not examine any application against the High
Contracting Party in respect of which that judge has been elected.
4
There shall sit as an ex officio member of the Chamber and the Grand Chamber the judge elected in
respect of the High Contracting Party concerned. If there is none or if that judge is unable to sit, a
person chosen by the President of the Court from a list submitted in advance by that Party shall
sit in the capacity of judge.
5
The Grand Chamber shall also include the President of the Court, the Vice-Presidents, the
Presidents of the Chambers and other judges chosen in accordance with the rules of the Court.
When a case is referred to the Grand Chamber under Article 43, no judge from the Chamber
which rendered the judgment shall sit in the Grand Chamber, with the exception of the President
of the Chamber and the judge who sat in respect of the High Contracting Party concerned.
Article 27 – Competence of single judges 5
1
A single judge may declare inadmissible or strike out of the Court’s list of cases an application
submitted under Article 34, where such a decision can be taken without further examination.
2
The decision shall be final.
3
If the single judge does not declare an application inadmissible or strike it out, that judge shall
forward it to a committee or to a Chamber for further examination.
5 New article according to the provisions of Protocol No. 14 (CETS No. 194).
393
Article 28 – Competence of committees 6
1
In respect of an application submitted under Article 34, a committee may, by a unanimous vote,
a
declare it inadmissible or strike it out of its list of cases, where such decision can be taken
without further examination; or
b
declare it admissible and render at the same time a judgment on the merits, if the underlying
question in the case, concerning the interpretation or the application of the Convention or the
Protocols thereto, is already the subject of well-established case-law of the Court.
2
Decisions and judgments under paragraph 1 shall be final.
3
If the judge elected in respect of the High Contracting Party concerned is not a member of the
committee, the committee may at any stage of the proceedings invite that judge to take the place
of one of the members of the committee, having regard to all relevant factors, including whether
that Party has contested the application of the procedure under paragraph 1.b.
Article 29 – Decisions by Chambers on admissibility and merits 7
1
If no decision is taken under Article 27 or 28, or no judgment rendered under Article 28, a
Chamber shall decide on the admissibility and merits of individual applications submitted under
Article 34. The decision on admissibility may be taken separately.
2
A Chamber shall decide on the admissibility and merits of inter-State applications submitted
under Article 33. The decision on admissibility shall be taken separately unless the Court, in
exceptional cases, decides otherwise.
Article 30 – Relinquishment of jurisdiction to the Grand Chamber
Where a case pending before a Chamber raises a serious question affecting the interpretation of
the Convention or the protocols thereto, or where the resolution of a question before the Chamber
might have a result inconsistent with a judgment previously delivered by the Court, the Chamber
may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the
Grand Chamber, unless one of the parties to the case objects.
Article 31 – Powers of the Grand Chamber 8
The Grand Chamber shall
a
determine applications submitted either under Article 33 or Article 34 when a Chamber has
relinquished jurisdiction under Article 30 or when the case has been referred to it under
Article 43;
6 Heading and text amended according to the provisions of Protocol No. 14 (CETS No. 194).
7 Text amended according to the provisions of Protocol No. 14 (CETS No. 194).
394
b
decide on issues referred to the Court by the Committee of Ministers in accordance with
Article 46, paragraph 4; and
c
consider requests for advisory opinions submitted under Article 47.
Article 32 – Jurisdiction of the Court 1
1
The jurisdiction of the Court shall extend to all matters concerning the interpretation and
application of the Convention and the protocols thereto which are referred to it as provided in
Articles 33, 34, 46 and 47.
2
In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.
Article 33 – Inter-State cases
Any High Contracting Party may refer to the Court any alleged breach of the provisions of the
Convention and the protocols thereto by another High Contracting Party.
Article 34 – Individual applications
The Court may receive applications from any person, non-governmental organisation or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the
rights set forth in the Convention or the protocols thereto. The High Contracting Parties
undertake not to hinder in any way the effective exercise of this right.
Article 35 – Admissibility criteria 1
1
The Court may only deal with the matter after all domestic remedies have been exhausted,
according to the generally recognised rules of international law, and within a period of six months
from the date on which the final decision was taken.
2
The Court shall not deal with any application submitted under Article 34 that
3
a
is anonymous; or
b
is substantially the same as a matter that has already been examined by the Court or has
already been submitted to another procedure of international investigation or settlement and
contains no relevant new information.
The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that :
a
the application is incompatible with the provisions of the Convention or the Protocols
thereto, manifestly ill-founded, or an abuse of the right of individual application; or
b
the applicant has not suffered a significant disadvantage, unless respect for human rights as
defined in the Convention and the Protocols thereto requires an examination of the
application on the merits and provided that no case may be rejected on this ground which
has not been duly considered by a domestic tribunal.
395
4
The Court shall reject any application which it considers inadmissible under this Article. It may
do so at any stage of the proceedings.
Article 36 – Third party intervention
9
1
In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose
nationals is an applicant shall have the right to submit written comments and to take part in
hearings.
2
The President of the Court may, in the interest of the proper administration of justice, invite any
High Contracting Party which is not a party to the proceedings or any person concerned who is
not the applicant to submit written comments or take part in hearings.
3
In all cases before a Chamber or the Grand Chamber, the Council of Europe Commissioner for
Human Rights may submit written comments and take part in hearings.
Article 37 – Striking out applications
1
The Court may at any stage of the proceedings decide to strike an application out of its list of
cases where the circumstances lead to the conclusion that
a
the applicant does not intend to pursue his application; or
b
the matter has been resolved; or
c
for any other reason established by the Court, it is no longer justified to continue the
examination of the application.
However, the Court shall continue the examination of the application if respect for human rights
as defined in the Convention and the protocols thereto so requires.
2
The Court may decide to restore an application to its list of cases if it considers that the
circumstances justify such a course.
Article 38 – Examination of the case 10
The Court shall examine the case together with the representatives of the parties and, if need be,
undertake an investigation, for the effective conduct of which the High Contracting Parties
concerned shall furnish all necessary facilities.
Article 39 – Friendly settlements 11
1
At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned
with a view to securing a friendly settlement of the matter on the basis of respect for human rights
396
as defined in the Convention and the Protocols thereto.
2
Proceedings conducted under paragraph 1 shall be confidential.
3
If a friendly settlement is effected, the Court shall strike the case out of its list by means of a
decision which shall be confined to a brief statement of the facts and of the solution reached.
4
This decision shall be transmitted to the Committee of Ministers, which shall supervise the
execution of the terms of the friendly settlement as set out in the decision.
Article 40 – Public hearings and access to documents
1
Hearings shall be in public unless the Court in exceptional circumstances decides otherwise.
2
Documents deposited with the Registrar shall be accessible to the public unless the President of
the Court decides otherwise.
Article 41 – Just satisfaction
If the Court finds that there has been a violation of the Convention or the protocols thereto, and if
the internal law of the High Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to the injured party.
Article 42 – Judgments of Chambers
Judgments of Chambers shall become final in accordance with the provisions of Article 44,
paragraph 2.
Article 43 – Referral to the Grand Chamber
1
Within a period of three months from the date of the judgment of the Chamber, any party to the
case may, in exceptional cases, request that the case be referred to the Grand Chamber.
2
A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious
question affecting the interpretation or application of the Convention or the protocols thereto, or a
serious issue of general importance.
3
If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.
Article 44 – Final judgments
1
The judgment of the Grand Chamber shall be final.
2
The judgment of a Chamber shall become final
a
when the parties declare that they will not request that the case be referred to the Grand
Chamber; or
b
three months after the date of the judgment, if reference of the case to the Grand Chamber
has not been requested; or
397
c
3
when the panel of the Grand Chamber rejects the request to refer under Article 43.
The final judgment shall be published.
Article 45 – Reasons for judgments and decisions
1
Reasons shall be given for judgments as well as for decisions declaring applications admissible or
inadmissible.
2
If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any
judge shall be entitled to deliver a separate opinion.
Article 46 – Binding force and execution of judgments
12
1
The High Contracting Parties undertake to abide by the final judgment of the Court in any case to
which they are parties.
2
The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall
supervise its execution.
3
If the Committee of Ministers considers that the supervision of the execution of a final judgment is
hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a
ruling on the question of interpretation. A referral decision shall require a majority vote of two
thirds of the representatives entitled to sit on the Committee.
4
If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final
judgment in a case to which it is a party, it may, after serving formal notice on that Party and by
decision adopted by a majority vote of two thirds of the representatives entitled to sit on the
Committee, refer to the Court the question whether that Party has failed to fulfil its obligation
under paragraph 1.
5
If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers
for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it
shall refer the case to the Committee of Ministers, which shall close its examination of the case.
Article 47 – Advisory opinions
1
The Court may, at the request of the Committee of Ministers, give advisory opinions on legal
questions concerning the interpretation of the Convention and the protocols thereto.
2
Such opinions shall not deal with any question relating to the content or scope of the rights or
freedoms defined in Section I of the Convention and the protocols thereto, or with any other
question which the Court or the Committee of Ministers might have to consider in consequence of
any such proceedings as could be instituted in accordance with the Convention.
3
Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require
a majority vote of the representatives entitled to sit on the Committee.
398
Article 48 – Advisory jurisdiction of the Court
The Court shall decide whether a request for an advisory opinion submitted by the Committee of
Ministers is within its competence as defined in Article 47.
Article 49 – Reasons for advisory opinions
1
Reasons shall be given for advisory opinions of the Court.
2
If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the
judges, any judge shall be entitled to deliver a separate opinion.
3
Advisory opinions of the Court shall be communicated to the Committee of Ministers.
Article 50 – Expenditure on the Court
The expenditure on the Court shall be borne by the Council of Europe.
Article 51 – Privileges and immunities of judges
The judges shall be entitled, during the exercise of their functions, to the privileges and
immunities provided for in Article 40 of the Statute of the Council of Europe and in the
agreements made thereunder.
Section III – Miscellaneous provisions
Article 52 – Inquiries by the Secretary General
On receipt of a request from the Secretary General of the Council of Europe any High Contracting
Party shall furnish an explanation of the manner in which its internal law ensures the effective
implementation of any of the provisions of the Convention.
Article 53 – Safeguard for existing human rights
Nothing in this Convention shall be construed as limiting or derogating from any of the human
rights and fundamental freedoms which may be ensured under the laws of any High Contracting
Party or under any other agreement to which it is a Party.
Article 54 – Powers of the Committee of Ministers
Nothing in this Convention shall prejudice the powers conferred on the Committee of Ministers
by the Statute of the Council of Europe.
Article 55 – Exclusion of other means of dispute settlement
The High Contracting Parties agree that, except by special agreement, they will not avail
themselves of treaties, conventions or declarations in force between them for the purpose of
submitting, by way of petition, a dispute arising out of the interpretation or application of this
Convention to a means of settlement other than those provided for in this Convention.
Article 56 – Territorial application
399
1
Any State may at the time of its ratification or at any time thereafter declare by notification
addressed to the Secretary General of the Council of Europe that the present Convention shall,
subject to paragraph 4 of this Article, extend to all or any of the territories for whose international
relations it is responsible.
2
The Convention shall extend to the territory or territories named in the notification as from the
thirtieth day after the receipt of this notification by the Secretary General of the Council of Europe.
3
The provisions of this Convention shall be applied in such territories with due regard, however,
to local requirements.
4
Any State which has made a declaration in accordance with paragraph 1 of this article may at any
time thereafter declare on behalf of one or more of the territories to which the declaration relates
that it accepts the competence of the Court to receive applications from individuals, nongovernmental organisations or groups of individuals as provided by Article 34 of the Convention.
Article 57 – Reservations
1
Any State may, when signing this Convention or when depositing its instrument of ratification,
make a reservation in respect of any particular provision of the Convention to the extent that any
law then in force in its territory is not in conformity with the provision. Reservations of a general
character shall not be permitted under this article.
2
Any reservation made under this article shall contain a brief statement of the law concerned.
Article 58 – Denunciation
1
A High Contracting Party may denounce the present Convention only after the expiry of five
years from the date on which it became a party to it and after six months' notice contained in a
notification addressed to the Secretary General of the Council of Europe, who shall inform the
other High Contracting Parties.
2
Such a denunciation shall not have the effect of releasing the High Contracting Party concerned
from its obligations under this Convention in respect of any act which, being capable of
constituting a violation of such obligations, may have been performed by it before the date at
which the denunciation became effective.
3
Any High Contracting Party which shall cease to be a member of the Council of Europe shall
cease to be a Party to this Convention under the same conditions.
4
The Convention may be denounced in accordance with the provisions of the preceding
paragraphs in respect of any territory to which it has been declared to extend under the terms of
Article 56.
Article 59 – Signature and ratification 13
1
This Convention shall be open to the signature of the members of the Council of Europe. It shall
400
be ratified. Ratifications shall be deposited with the Secretary General of the Council of Europe.
2
The European Union may accede to this Convention.
3
The present Convention shall come into force after the deposit of ten instruments of ratification.
4
As regards any signatory ratifying subsequently, the Convention shall come into force at the date
of the deposit of its instrument of ratification.
5
The Secretary General of the Council of Europe shall notify all the members of the Council of
Europe of the entry into force of the Convention, the names of the High Contracting Parties who
have ratified it, and the deposit of all instruments of ratification which may be effected
subsequently.
Done at Rome this 4th day of November 1950, in English and French, both texts being equally
authentic, in a single copy which shall remain deposited in the archives of the Council of Europe.
The Secretary General shall transmit certified copies to each of the signatories.
401

Freedom of Expression, the Media and Journalists: Case

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